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D 


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ou  qui  peuvent  exiger  une  modirtcation  dans  la  m^tho- 
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[     I  Coloured  pages  /  Pages  de  couleur 

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D 


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D 
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possible. 


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The  copy  filmed  h«r«  hM  iM^n  raproducad  thanks 
to  tha  ganaroaity  of: 

National  Library  of  Canada 


L'ai'amplaira  filmi  fut  raproduit  grica  A  la 
gin«rositi  da: 

Bibliotheque  nationals  du  Canada 


Tha  imagas  appaaring  hara  ara  tha  bast  quality 
poBsibIa  considaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacificationa. 


Original  copias  in  printad  papar  eovars  ara  filmad 
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tha  laat  paga  with  a  printad  or  iliuatratad  impraa- 
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othar  original  copiaa  ara  filmad  beginning  on  the 
first  pege  with  a  printed  or  illustrated  imprea* 
sion,  and  ending  on  the  lest  pege  with  e  printed 
or  illuetreted  impreeeion. 


The  lest  recorded  freme  on  eech  microfiche 
shell  contein  the  symbol  •-•^  (meening  "CON- 
TINUED"), or  the  symbol  V  (meening  "END"), 
whichever  eppiiee. 


Les  imeges  suiventes  ont  txi  reproduites  avec  la 
plus  grand  soin,  compta  tanu  da  la  condition  at 
da  la  nettet*  de  raxamplaira  film*,  et  an 
conformita  evec  les  conditions  du  contrat  de 
filmege. 

Les  exempleires  originoux  dont  le  couverture  an 
pepier  est  ImprimAe  sent  filmis  en  commancant 
per  le  premier  piet  et  en  terminent  soit  par  la 
darniire  pege  qui  comporte  une  empreinta 
d'impression  ou  d'illustretion,  soit  per  le  second 
plot,  selon  le  ces.  Tous  les  autres  exemplaires 
origineux  sent  film4s  en  commenpent  par  la 
premiere  pege  qui  comporte  une  empreinta 
d'impression  ou  d'illustretion  et  en  twrminant  par 
le  derni*re  pege  qui  comporte  une  tells 
empreinte. 

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darniire  image  de  cheque  microfiche,  salon  la 
ces:  le  symbr.e  ^»  signifie  "A  SUIVRE '.  le 
symbols  ▼  signifie  "FIN". 


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method: 


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Carnegie  Endowment    for    International    Peace 

DIVISION    OF   INTERNATIONAL   LAW 


THE    CONTROVERSY    OVER 

NEUTRAL  RIGHTS  BETWEEN 

THE  UNITED  STATES  AND 

FRANCE  1797-1800 


A  COLLECTION  OF  AMERICAN  STATE  PAPERS 
AND  JUDICIAL  DECISIONS 


I 


EDITED  BY 

JAMES  BROWN  SCOTT 

DIRECTOR 


NEW  YORK 

OXFORD   UNIVERSITY  PRESS 

AMERICAN  BRANCH     3S  Wut  32nd  Stiiei 
LONDON    TORONTO    MELBOURNE,  AND  BOMBAY 

1917 


BTRON   8.   AOAMS,   PRINTBR 
WASHINUTON,  D.  C. 


Prefatory  Note 

mL'?"'M^^^"'*  °"''  •commerce  and  the  lives  of  our  people  in  the 
Sear  a^d  L^'nr.'  ''^'"^  'circumstances,  with  discreS  bu  with 
rr^r.-n^     steadfast  purpose.     Only  the  method  and  the  exTent 

S     W  it  S:ruXn  'f  "^^^^r-  '^  ^^''°-  ^1^°"'^  '"deed 
neutral  rfcrhf J  K!i"?PP!'y  P'°^^d  impossible  to  safeguard  our 
neutral  rights  by  diplomatic  means  against  the  unwarranted  in 
fnngements  they  are  suffering  at  the  hands  of  GeXn?  there" 

SS:  ?o  ZStZZ^f  ^°  rr-^ -utrality'whth  weTJi  ktw 
now  to  maintain  and  for  which  there  is  abundant  American  prec- 

foirtl?d'!ffl''l'''Tu''^°"'''"'^  '"  '^'  P'^^'dent's  address  setting 
forth  the  difficulties  of  the  Government  of  the  United  States  concern 

JI'mel'vTT"  T"""'  ''  ''^^  '^^"  ^^°"«h'  ''°^h  interesting  and 
timdy  to  CO  lect  and  to  publish  the  accompanying  documents  reLing 

John  aZ"  ""'"""'  "''  ^"""  "^"""^  ^'''^  P-«'dency  of 

The  present  volume,  which  is  issued  as  a  contribution  to  American 
precedent,  contains  in  Part  I.  pertinent  extracts  from  Preirnt 
Adams  messages,  the  respective  replies  of  the  Senate  and  the  House 
the  aws  enacted  by  Congress  to  meet  the  situation,  and  the  proclama- 
tions ,ssued  by  the  President.  Part  II  continues  the  subject  by 
bringmg  together  opinions  of  the  attorneys  general  and  decisions  of 
the  Supreme  Court  of  the  United  States  and  of  the  Court  of  Qaims 
regarding  the  ongm  nature,  extent  and  legal  effect  of  the  hostilities 
between  the  United  States  and  France  at  the  close  of  the  eighteenth 
century  Part  III  ,s  an  Appendix  which  contains  the  Treaties  of  Alli- 
^yZ '  . °i  n''^  '"^  Commerce  of  1778.  the  consular  convention  of 
1/88  and  the  Convention  of  1800  terminating  the  differences  between 
the  two  Powers.  These  treaties  are  in  the  English  and  French  lan- 
guages m  parallel  columns. 

By  way  of  introduction,  there  is  prefixed  .  n  extract  from  the 
learned  note  of  J.  C.  Bancroft  Davis'  Treaties  and  Conventions  be- 
tween the  United  States  and  other  Powers,  which  gives  in  summary 
form  the  history  of  the  controversy. 


Washincton,  D.  C, 
February  28,  191^. 


James  Brown  Scott, 
Director  of  the  Division  of  International  Law. 


Contents 


Prefatory  Note 

List  or  Authouhes. 


PACE 

iii 
.    vii 


.4 


HiSTOTiCAL  Introduction— An  extract  from  J.  C.  Bancroft  Davis's  notes 
to  Treaties  and  Conventions  between  the  United  States  of  America  and 
other  Powers  \ 

Part  I— State  Papers  Relating  to  the  Controversy  over  Neutral  Right's 

Between  the  United  States  and  France,  1797-1800 
Extracts   from    Messages   of    President   Adams,    an"   Replies   of   the 
Senate  and  House: 

Special  Session  Message,  May  16,  1797 25 

Address  of  the  Senate,  May  23,  1797 " '  31 

Reply  of  the  President,  May  24,  1797 .'  34 

Address  of  the  House  of  Representatives,  June  2,  1797 35 

Reply  of  the  President,  June  3,  1797 

First  Annual  Address,  November  22,  1797 od 

Address  of  the  Senate,  November  27,  1797 39 

Reply  of  the  President,  November  28,  1797 41 

Address  of  the  House  of  Representatives,  November  28,  1797. .  41 

Reply  of  the  President,  November  29.  1797 42 

Second  Annual  Address,  December  8,  1798 43 

Address  of  the  Senate,  December  11,  1798 45 

Reply  of  the  President,  December  12,  1798 [  46 

Address  of  the  House  of  Representatives,  December  13,  i798 47 

Reply  of  the  President,  December  14,  1798 49 

Third  Annual  Address,  December  3,  1799 .   '  50 

Address  of  the  Senate,  December  9,  1799 51 

Address  of  the  House  of  Representatives,  December  9,  1799 51 

Reply  of  the  President,  December  10,  1799 ."  53 

Fourth  Annual  Address,  November  22,  1800 53 

Address  of  the  House  of  Representatives,  November  26,  i866! .....  54 

Reply  of  the  President,  November  27,  1800 55 

Acts  of  Congress  : 

An  Act  more  effectually  to  protect  the  Commerce  and  Coasts  of  the 

United  States,  May  28,  1798 56 

An  Act  to   suspend   the  commercial   intercourse   between    the   United 

States  and  France,  and  the  dependencies  thereof.  June  13,  1798 56 

An  Act  to  authorize  the  defence  of  the  Merchant  Vessels  of  the  United 

States  against  French  depredations,  June  25,  1798 59 

An  Act  in  addition  to  the  act  more  effectually  to  protect  the  Commerce 

and  Coasts  of  the  United  States,  June  28,  1798 61 

An  Act  respecting  Alien  Enemies,  July  6,  1798 63 

An  Act  to  declare  the  treaties  heretofore  concluded  with  France,  no 

longer  obligatory  on  the  United  States,  July  7,  1798 65 

An  Act  further  to  protect  the  Commerce  of  the  United  States.  July  9 

1798    .......'    65 

An  Act  further  to   suspend  the  Commercial  Intercourse  between  the 

United  States  and  France,  and  the  dependencies  thereof,  February  9 

»799 :,.:  68 


1 


vi  CONTENTS 

?AGE 

An  Act  for  the  Government  of  the  Navy  of  the  United  States,  March 
2,  1799 72 

An  Act  further  to  suspend  the  commercial  intercourse  between  the 
United  States  and  France,  and  the  dependencies  thereof,  February 
27.  1800  84 

An  Act  providing  for  Salvage  cases  of  Recapture,  March  3,  1800 89 

An  Ac^  to  continue  in  force  the  act  intituled  "An  act  to  authorize  the  de- 
fence of  the  merchant  vessels  of  the  United  States  against  French 
depredations,"  April  22,  1800 92 

An  Act  to  provide  for  the  ascertainment  of  claims  of  American  citizens 
for  spoliations  committed  by  the  French  prior  to  the  thirty-first  day 
of  July,  eighteen  hundred  and  one,  January  20,  1885 92 

Proclamations: 

Proclamation  of  June  26,  1799 95 

Proclamation  of  May  9,  1800 96 

Proclamation  of  September  6,  1800 97 


Pakt  II— Opinions  of  the  Attorneys  General  and  Judgments  of  the 
Supreme  Court  ano  Court  of  Claims  of  the  United  States. 

Opinions  of  the  Attorneys  General  ok  the  United  States: 

Opinion  of  August  21,  1798,  on  Treason 99 

Opinion  of  September  20,  1798,  on  the  Disposition  of  a  Prizf  Ship  and 
Crew    100 

Judgments  of  the  Supreme  Court  of  the  United  States  : 

Talbot  V.  Seeman  ( The  Amelia),  4  Dallas,  34 102 

Bas  V.  Tingy  {The  Eliza).  4  Dallas,  37 104 

Talbot  V.  Sccman  ( The  Amelia),  1  Cranch,  1 116 

United  States  v.  Schooner  I'eggy,  1  Cranch,  103 152 

Murray  v.  Schooner  Charming  Betsy,  2  Cranch,  64 158 

Little  V.  Barreme  ( The  Flying  l-ish),  2  Cranch,  170 206 

Hallet  &  Bowne  v.  Jenks,  3  Cranch,  210 214 

Sands  v.  Knox,  3  Cranch,  499 222 

Judgments  of  the  Court  of  Claims  of  the  United  States: 

Gray  v.  United  States.  21  C.  Cls.  340 227 

Gushing  v.  United  States,  22  C.  Cls.  1 293 

Hooper  v.  United  States,  22  C.  Cls.  408 350 

The  Ship  Concord.  35  C.  Cls.  432 405 

The  Ship  Rose,  3b  C.  Cls.  290 411 

The  Schooner  Jane,  37  C.  Cls.  24 424 

The  Ship  James  and  IVilliam,  37  C.  Cls.  303 433 


Appendix 

Treaties  between  the  United  States  and  France: 

Treaty  of  .\mity  and  Commerce,  February  6,  1//8 441 

Treaty  of  .Mliance,  February  6.  1778 466 

Consular  Convention.  November  14.  1788 473 

Convention  of  Peace.  Commerce  and  Navigation,  September  30,  1800. . .  487 


List  of  Authorities 

American  State  Papers,  Foreign  Relations.  Documents,  Legislative  and  Execu- 
tive, of  the  Congress  of  the  United  States,  1789-1815.  6  vols.,  Washington, 
1832-1859.    (Cited  F.  R.  F.) 

Annals  of  the  Congress  of  the  United  States.  First  to  Eighteenth  Congress, 
1789-1824.    42  vols.,  Washington,  1834-1856.  (Cited  Annals.) 

The  Diplomatic  Correspondence  of  the  United  States  of  America,  from  the  sign- 
ing of  the  Definitive  Treaty  of  Peace,  roth  September,  1783,  to  the  adoption 
of  the  Constitution,  March  4,  ijii).  3  vols.,  Washington,  1837.  (Cited  D.  C. 
1783-89.) 

Garden,  Comte  de.  Histoxrc  Ginirale  dcs  Traitis  de  Paix  et  autres  transactions 
principales  entre  toutes  les  Puissances  de  I'Europe  depuis  la  Paix  de  West- 
phalie.    15  vols.,  Paris.    (Cited  Garden,  Traites  de  Paix.) 

OKciat  Opinions  of  the  Attorneys  General  of  the  United  States.  Washington, 
Government  Printing  Office.    (Cited  Op.  At.  Gen.) 

Pitkin,  Timothy.  A  Political  and  Civil  History  of  the  United  States,  1763-1797. 
2  vols..  New  Haven,  1828.     (Cited  Pitkin's  Political  History.) 

Ridacteur,  No.  382,  January  1,  1797. 

Register  of  Debates  in  Congress.  14  vols.,  Washington,  1825-1837.  (Cited  De- 
bates.) 

Richardson,  James  D.  A  Compilation  of  the  Messages  and  Papers  of  the  Presi- 
dents, 1789-1897.  10  ols.,  Washington,  1896-1899.  (Cited  Richardson, 
Messages.) 

Senate  Documents.     (Cited  S.  Doc.) 

Senate  Reports.     (Cited  S.  R.) 

The  Statutes  at  Large  of  the  Uuited  States  of  America.  Washington,  Govern- 
ment Printing  Office.     (Cited  St.  at  L. ;  Stat.  L.) 

Treaties  and  Conventions  concluded  between  the  United  States  of  America  and 
other  Powers  since  July  4,  1776.  Washington,  Government  Printing  Office, 
1889.    (Cited  Treaties  and  Conventions,  1889.) 

The  Writings  of  George  Washington.  Jared  Sparks.  12  vols..  New  York,  1847- 
1848.     (Cited  Washington's  Writings;  Washington's  Works.) 

The  Writings  of  Thomas  Jefferson.  Edited  by  H.  A.  Washington.  9  vols., 
Washington,  18S3-1854.     (Cited  Jefferson's  Works.) 

Note.— Some  of  the  above  citations  are  not  now  in  general  use,  but  as  they  are 
reproductions  from  an  older  publication,  it  has  not  been  deemed  wise  to  change 
them  to  conform  to  modern  practice. 


n 


1 


;!? 


STATE  PAPERS  AND  JUDICIAL  DECISIONS  RELATING  TO 
THE  CONTROVERSY  OVER  NEUTRAL  RIGHTS  BE- 
TWEEN THE  UNITED  STATES  AND  FRANCE,  1797-1800 


m 


Historical  Introduction 

On  the  25th  of  January,  1782,  the  Continental  Congress  passed  an 
act  authorizing  and  directing  Dr.  Franklin  to  conclude  a  Consular 
Convention  with  France  on  the  basis  of  a  scheme  which  was  sub- 
mitted to  that  body.  Dr.  Franklin  concluded  a  very  different  conven- 
tion, which  Jay,  the  Secretary  for  Foreign  Affairs,  and  Congress  did 
not  approve.*  Franklin  having  returned  to  America,  the  negotiations 
then  fell  upon  Jefferson,  who  concluded  the  Convention  of  1788.  This 
was  laid  before  the  Senate  by  President  Washington  on  the  11th  of 
June,  1789. 

On  the  21st  of  July  it  was  ordered  that  the  Secretary  of  Foreign 
Affairs  attend  the  Senate  to-morrow  and  bring  with  him  such  papers 
as  are  requisite  to  give  full  information  relative  to  the  Consular  Con- 
vention between  France  and  the  United  States.*  Jay  was  the  Secretary 
thus  "ordered."  He  was  holding  over,  as  the  new  Department  was  not 
then  created.  The  Bill  to  establish  a  Department  of  Foreign  Affairs 
had  received  the  assent  of  both  Houses  the  previous  day,*  but  had  not 
yet  been  approved  by  the  President.'  Jay  appeared,  as  directed,  and 
made  the  necessary  explanations.*  The  Senate  then  Resolved  that  the 
Secretary  of  Foreign  Affairs  under  the  former  Congress  be  requested 
to  peruse  the  said  Convention,  nnd  to  give  his  opinion  how  far  he  con- 
ceives the  faith  of  the  United  States  to  be  engaged,  either  by  former 
agreed  stipulations  or  negotiations  entered  into  by  our  Minister  at  the 
Court  of  Versailles,  to  ratify  in  its  present  sense  or  form  the  Conven- 

'  Thii  introduction  has  hfen  taken  from  pages  9M  to  1002  of  I  C  Bancroft 
DavHs  notes  to  the  revised  edition  (1873)  of  Treatus  and  ComrHtions  concluded 
bttwen  the  I  nUcd  States  of  America  and  other  Powers  since  Juh  j   ito 

•  1  D.  C.  1783-89,  232.  "  It,..  52. 

•  Annals  1st  Sess   Ut  Cong.  52.  •  lb 

•  lb.,  685. 


.^  i 


2  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

tion  now  referred  to  the  Senate.'  Jay  made  a  written  report  on  the 
27th  of  July  that  in  his  judgment  the  United  States  ought  to  ratify 
the  Convention;'  and  the  Senate  gave  its  unanimous  consent.*  The 
Statute  to  carry  the  Convention  into  effect  was  passed  the  14th  of 
April,  1792.* 

Three  articles  in  the  treaties  with  France  concluded  before  the  Con- 
stitution became  the  cause  of  difference  between  the  two  Powers : 

1.  Article  XI  of  the  Treaty  of  Alliance,  by  which  the  United  States, 
for  a  reciprocal  consideration,  agreed  to  guarantee  to  the  King  of 
France  his  possessions  in  America,  as  well  present  as  those  which 
might  be  acquired  by  the  Treaty  of  Peace. 

2.  Article  XVII  of  the  Treaty  of  Amity  and  Commerce,  providing 
that  each  party  might  take  into  the  ports  of  the  other  its  prizes  in 
time  of  war,  and  that  they  should  be  permitted  to  depart  without 
molestotion ;  and  that  neither  should  give  shelter  or  refuge  to  vessels 
which  had  made  prizes  of  the  other  unless  forced  in  by  stress  of 
weather,  in  which  case  they  should  be  required  to  depart  as  soon  as 
possible. 

3.  Article  XXII  of  the  same  Treaty,  that  foreign  privateers,  the 
enemies  of  one  party,  should  not  be  allowed  in  the  ports  of  the  other 
to  fit  their  ships  or  to  exchange  or  sell  their  captures,  or  to  purchase 
provisions  except  in  sufficient  quantities  to  toke  them  to  the  next  port 
of  their  own  State. 

Jefferson,  who  was  the  Minister  of  the  United  States  at  the  Court  of 
Versailles  when  the  Constitution  went  into  operation,  was  appointed 
Secretary  of  State  l)y  President  Washington  on  the  26th  of  September. 
1789.  He  accepted  the  appointment  and  presented  Short  to  Neckar 
as  charge  d'affaires  of  the  United  States.' 

Gouvemeur  Morris,  of  New  York,  who  had  been  in  Europe  from 
the  dawn  of  the  French  revolution,  and  had  been  in  reguUr  friendly 
correspondence  with  Washington,"  was  appointed  Minister  to  France 
on  the  12th  of  January.  1792.  At  the  time  of  the  appointment  Wash- 
mgton  wrote  him  a  friendly  and  admoritory  letter:  -'The  official  com- 
munications from  the  Secretary  of  State  accompanying  this  letter  will 
convey  to  you  the  evidence  of  my  nomination  and  appointment  of  you 
to  be  Minister  Plenipotentiary  of  the  United  States  at  the  Court'  of 


'  Annals  1st  Sfss.  1st  Cong 

»Ib.,  54. 

•lb. 


52.  *  1  .St.  at  L..  2S4. 

»  3  Jeflferson's  Works, 
•  1  F.  R.  F..  379-399. 


119 


HISTORICAL  INTRODUCTION 


France ;  and  my  assurance  that  both  were  made  with  all  my  heart  will, 
I  am  persuaded,  satisfy  you  as  to  that  fact.  I  wish  I  could  add  that 
the  advice  and  consent  flowed  from  a  similar  source.  *  *  *  Not  to 
go  further  into  detail  I  will  place  the  ideas  of  your  political  adversaries 
in  the  light  in  which  their  arguments  have  presented  them  to  me, 
namely,  that  the  promptitude  with  which  your  lively  and  brilliant 
imagination  is  displayed  allows  too  little  time  for  deliberation  and 
correction,  and  is  the  primaiy  cause  of  those  sallies  which  too  often 
offend,  and  of  that  ridicule  of  character  which  begets  enmity  not  easy 
to  be  forgotten,  but  which  might  easily  be  avoided  if  it  was  under  the 
control  of  more  caution  and  prudence.  In  a  word,  that  it  is  indispen- 
sably necessary  that  more  circumspection  should  be  observed  by  our 
representatives  abror.d  t'.ian  they  conceive  you  are  inclined  to  adopt. 
In  this  statement  you  have  the  pros  and  cons.  By  reciting  them  I  give 
you  a  proof  of  my  friendship  if  I  give  you  none  of  my  policy  or 
judgment."' 

Morris  entered  upon  the  duties  of  his  office  with  these  wise  cautions 
in  his  hand,  but  he  did  not  succeed  in  gaining  the  good-will  of  a  suc- 
cession of  governments  with  which  he  had  little  sympathy:*  for  he 
writes  Jefferson  on  the  13th  of  February,  1793 :  "Some  of  the  leaders 
here  who  are  in  the  diplomatic  committee  hate  me  cordially,  though  it 
would  puzzle  them  to  say  why."* 

When  Morris  was  appointed  Minister,  the  commercial  relations 
between  the  two  countries  were  satisfactory  to  neither.  Exceptional 
favors  to  the  commerce  of  the  United  States,  granted  by  royal  decree 
in  1787  and  1788,*  had  been  withdrawn,  and  a  jealousy  was  expressed 
in  France  in  consequence  of  the  Act  of  Congress  putting  British  and 
French  commerce  on  the  same  basis  in  American  ports.'  No  excep- 
tional advantages  had  come  to  France  from  the  war  of  the  revolution, 
and  .American  commerce  had  reverted  to  its  old  British  channels. 

Jefferson  greatly  desired  to  conclude  a  convention  with  France  which 
should  restore  the  favors  which  .American  commerce  had  lost,  and 
bring  the  two  countries  into  closer  connection.  On  the  10th  of  March, 
1792.  he  instructs  Morris:  "We  had  expected,  ere  this,  that  in  conse- 
quence of  the  recommendation  of  their  predecessors,  some  overtures 
would  have  been  made  to  us  on  the  subject  of  a  Treaty  of  commerce. 


»  10  Washington's  Writingi.  216-18. 
•  t  F.  R.  F.  412. 
'  lb..  350. 


«Ih.,  113,  116. 

'  See  Short's  correspondence,  lb.. 


120. 


4  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

*  Perhaps  they  expect  that  we  should  declare  our  readiness  to  meet 
on  the  ground  of  Treaty.  If  they  do,  we  have  no  hesitation  to  declare 
It.' '  Again,  on  the  28th  of  April,  he  writes:  "It  will  be  impossible 
to  defer  longer  than  the  next  session  of  Congress  some  counter  regu- 
lations for  the  protection  of  our  navigation  and  commerce.  I  must 
entreat  you,  therefore,  to  avail  yourself  of  every  occasion  of  friendly 
remonstrance  on  this  subject.  If  th.  -  sh  an  equal  and  cordial  treaty 
with  us,  we  are  ready  to  enter  into  it.  'V\  e  would  wish  that  this  could 
be  the  scene  of  negotiation."*  Again,  on  the  16th  of  June,  he  writes: 
"That  treaty  may  be  long  on  the  anvil ;  in  the  mean  time  we  cannot 
consent  to  the  late  innovations  without  taking  measures  to  do  justice 
to  our  own  navigation."* 

The  great  revolution  of  the  10th  of  August,  and  the  imprisonment 
of  the  King,  were  duly  reported  by  Morris;*  and  Jefferson  replied  on 
the  7th  of  November:  "It  accords  with  our  principles  to  acknowledge 
any  government  to  be  rightful  which  is  formed  by  the  will  of  the 
nation  substantially  declared.  *  •  There  are  some  matters  which 
1  conceive  might  be  transacted  with  a  government  de  facto;  such,  for 
instance,  as  the  reforming  the  unfriendly  restrictions  on  our  commerce 
and  navigation."' 

To  these  instructions,  Morris  answered  on  the  13th  of  February, 
1793,  three  weeks  after  the  execution  of  the  King,  and  a  fortnight 
after  the  declaration  of  war  against  England:  "You  had  *  in- 
structed me  to  endeavor  to  transfer  the  negotiation  for  a  new  treaty 
to  America,  and  if  the  revolution  of  the  10th  of  August  had  not  taken 
place,  *  I  should,  perhaps,  have  obtained  what  you  wished.  *  *  • 
The  thing  you  wished  for  is  done,  and  you  can  treat  in  .\merica  if 
you  please."*  In  the  same  dispatch,  Morris  spoke  of  the  "sending  out 
of  M.  Genet,  without  mentioning  to  me  a  syllable  either  of  his  mission 
or  his  errand."  and  said  that  "the  pompousness  of  this  enibassv  could 
not  but  excite  the  attention  of  England."' 

On  the  7th  of  March,  Morris  wrote  to  Jefferson  that  "Genet  took 
oi!t  with  him  three  hundred  blank  commissions,  which  he  is  to  dis- 
'  '^  te  to  such  as  will  fit  out  cruisers  in  cur  ports  to  prev  on  tiie 


Jefferson's  Works,  33S-9. 
»  lb..  356. 
■'  lb..  449. 
M  F.  R.  F.,  333. 


'  ^  Jefferson's  Works,  489. 
■  1  F.  R.  F.,  350. 

"II,, 


HISTORICAL  INTRODUCTION  5 

British  commerce."  and  that  he  had  already  mentioned  the  fact  to 
Pmckney,  and  had  desired  him  to  transmit  it.' 

The  new  condition  of  affairs  caused  by  the  war  induced  the  Presi- 
dent to  submit  a  series  of  questions  to  the  members  of  his  cabinet  for 
their  consideration  and  reply.*  It  would  seem  from  a  passage  of  Mr. 
Jefferson  s  Ana  that  the  second  of  these  questions-"Shall  a  Minister 
from  France  !«:  received?"  was  suggested  by  the  Secretary  of  State.' 
An  account  of  the  meeting  of  the  cabinet  at  which  these  questions 
were  discussed  will  be  found  in  vol.  9  Jefferson's  Works,  page  142 

i  he  first  two  questions  were  unanimously  answered  in  the  affirma- 

ive-that  a  proclamation  for  the  purpose  of  preventing  citizens  of  the 

United  States  from  interfering  in  the  war  between  France  and  Great 

Bntam  should  issue,  and  that  Genet  should  be  received;  but  by  a  com- 

la'iTtion '      '*'™  "«"'rality"  was  omitted  from  the  text  of  the  proc- 

When  Genet  landed  in  Charleston,  on  the  Sth  of  April,  1793-even 
when  he  arrived  in  Philadelphia-it  may  be  believed  that  Washington 
contemplated  the  probability  of  closer  relations  with  France,  and  the 
possibility  of  a  war  with  Great  Britain.  The  relations  with  the  latter 
Power  were  in  a  critical  condition.  British  garrisons  were  occupying 
commanding  positions  on  our  lake  frontiers,  within  the  territory  of 
the  United  States,  in  violation  of  the  Treaty  of  1783;  and  an  Indian 
quarrel  was  on  the  President's  hands,  fomented,  as  he  thought  by 
british  intrigue.*  ^ 

The  policy  which  Washington  favored,  denied  France  nothing  that 
she  cou  d  justly  demand  under  the  Treaty,  except  the  possible  enforce- 
ment of  the  provision  of  guarantee;  and  that  provision  was  waived 
by  Genet  in  his  first  interview  with  Jefferson.  "We  know."  he  said 
that  under  present  circumstances  we  have  a  right  to  call  upon  you  for 
the  guarantee  of  our  islands.    But  we  do  not  desire  it  "• 

On  the  other  hand,  it  offered  to  Great  Britain  neutrality  onlv,  with- 
out a  right  of  asylum  for  prizes,  this  being  conferred  exclusively  by 
Treaty  upon  France;  and  it  dema:  ded  the  relinquishment  of  the  Forts 
on  the  lakes  and  the  aoandonment  of  impressment. 

!  r„  ?•.  •";•. •'^  "  9  Jefferson's  Work,.  140. 

0  \\  asbmgton'.  Works.  3.17.  S33.       «  3  jeffor.on's  Work,.  591 

".'  Jefferson's  Works,  563. 


6  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

It  is  not  likely  that  the  purposes  of  Genet's  mission  were  fully  com- 
prehended by  the  American  Government.  By  a  Treaty  in  1762  (first 
made  public  in  1836),^  France  ceded  Louisiana  to  Spain.  Genet  was 
instructed  to  sound  the  disposition  of  the  inhabitants  of  Louisiana 
towards  the  French  Republic,  and  to  omit  no  opportunity  to  profit  by 
it  should  circumstances  seem  favorable.  He  was  also  to  direct  particu- 
lar attention  to  the  designs  of  the  Americans  upon  the  Mississippi.' 

In  one  of  his  letters  Genet  says  of  himself,  "I  have  been  seven  years 
a  head  of  the  bureau  at  Versailles,  imder  the  direction  of  Vergennes ; 
I  have  passed  one  year  at  London,  two  at  Vienna,  one  at  Berlin,  and 
five  in  Russia.'"  His  dealings  with  the  United  States  showed  that  he 
had  gathered  little  wisdom  from  such  varied  experience. 

Before  he  left  Charieston,  which  at  that  time  had  few  regular  means 
of  communication  with  Philadelphia,  he  had  armed  and  commissioned 
several  vessels,  and  these  vessels,  dispatched  to  sea,  had  made  many 
prizes.*  On  his  arrival  at  Philadelphia,  Jefferson  met  him  with  com- 
plaints; but  he  justified  his  course  at  Charleston  and  denounced  an 
interference  with  it  as  a  "State  Inquisition";'  and,  admitting  what  was 
complained  of,  he  contended  that  he  had  not  exceeded  the  rights  con- 
ferrea  upon  his  country  by  the  Treaty  of  1778. 

The  Secretary  of  State  disputed  his  reasoning;  upon  which  he 
retorted:  "I  wish.  Sir,  that  the  Federal  Government  should  observe, 
as  far  as  in  their  power,  the  public  engagements  contracted  by  both 
nations ;  and  that  by  this  generous  and  prudent  conduct,  they  will  give 
at  least  to  the  worid  the  example  of  a  true  neutrality,  which  does  not 
consist  in  the  cowardly  abandonment  of  their  friends,  in  the  moment 
when  danger  menaces  them,  but  in  adhering  strictly,  if  they  can  do 
no  better,  to  the  obligations  they  have  contracted  with  them."'  He 
continued  to  claim  and  exercise  the  right  of  using  the  ports  of  the 
United  States  as  a  base  for  wariike  operations,  and,  as  the  discussions 
went  on,  his  expressions  became  stronger,  and  more  contemptuous 
toward  the  President  and  the  Government  of  the  United  States. 

His  instructions  contemplated  a  political  alliance  between  the  two 
republics.'  This  was  never  proposed.  He  did  propose,  however,  the 
re-arrangement  of  the  debt  due  to  France  on  the  basis  of  the  payment 

»  6  Garden,  Traites  de  Paix,  266.  « lb. 

•8  Garden.  Traites  de  Paix,  40-41.  "  1  F.  R.  F.   151 

•  1  F.  R.  F..  183.  T  ib._  708. 
« lb.,  150. 


■ 


4 


HISTORICAL  INTRODUCTION  7 

of  a  larger  installment  than  was  required  by  the  contract,  to  be  ex- 
pended in  the  purchase  of  provisions  in  the  United  States:— and  the 
conclusion  of  a  new  commercial  Treaty.  Jefferson  declined  the  former, 
and  as  to  the  latter  said  that  the  participation  in  matters  of  Treaty 
given  by  the  Constitution  to  the  Senate  would  delay  any  definite  an- 
swer.' 

At  length  his  conduct  became  so  violent  and  indecent  (Garden 
speaks  of  Washington  as  "personnellement  insulte  dans  les  actes  diplo- 
matiques  de  M.  Genet")'  that  Jefferson,  on  the  15th  of  August,  1793, 
instructed  Morris  to  demand  his  recall.  One  of  the  first  acts  of  his 
successor  was  to  demand  his  arrest  for  punishment,  which  was  refused 
by  the  Government  of  the  United  States  "upon  reasons  of  law  and 
magnanimity."* 

It  was  several  months  before  the  request  for  his  recall  could  be 
complied  with.  Meanwhile,  the  United  States  being  without  a  navy, 
prizes  continued  to  be  brought  into  their  ports,  and  French  Consuls 
attempted  to  hold  prize  courts  within  their  jurisdiction.*  Genet  also 
applied  himself  diligently  at  this  time  to  the  greater  scheme  respecting 
the  Louisianas  which  Garden  regards  as  the  main  object  of  his  mission. 
An  armed  expedition  was  organized  in  South  Carolina  and  Georgia 
for  an  attack  upon  Florida.'  Garden  says  that  he  had  assurances  that 
all  Louisiana  desiici  to  return  under  the  jurisdiction  of  France,  and  he 
made  serious  preparations  for  conquering  it.  He  prepared  a  co-opera- 
tion of  naval  forces,  which  were  to  appear  off  the  coast  of  Florida. 
The  principal  land  forces  were  to  embark  from  Kentucky,  and,  descend- 
ing the  Ohio  and  the  Mississippi,  were  to  fall  unexpectedly  upon  New 
Orleans."'  The  action  of  the  Government  and  the  recall  of  Genet  put 
a  stop  to  these  expeditions  against  Spam,  although  Jefferson  at  that 
time  thought  a  war  with  Spain  inevitable.' 

In  retaliation  the  Executive  Provisory  Council  of  the  French  Re- 
public demanded  the  recall  of  Morris.'  In  communicating  the  fact  to 
him  Secretary  Randolph  said:  "You  have  been  assailed,  however, 
from  another  quarter.    Nothing  has  ever  been  said  to  any  officer  of 

'  1  F.  R.  F.,  568. 

'  8  Garden,  Traites  de  Paix,  43,  "personally  insulted  by  the  acts  of  Mr.  Genet " 

»  1  F.  R.  F .  709.  .  lb..  309.  426. 

♦  lb.,  147. 

•  8  Garden   Traites  de  Paix.  42.    More  detailed  account  of  this  affair  will  be 
found  m  2  Pitkin's  Political  History,  379. 

'  3  Jefferson's  Works,  591.  »  1  F.  R.  F.,  463. 


8 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


our  Government  by  the  Ministers  of  France  ^hich  required  attention 
until  the  9th  day  of  April  last,  when  Mr.  Faucliet  communicated  to 
me  a  part  of  his  instructions,  indirectly  but  plainly  making  a  wish  for 
your  recall.  In  a  few  days  afterwards  a  letter  was  received  from  the 
Executive  Provisory  Council,  expressive  of  the  same  wish.  Mr.  Fau- 
chet  was  answered  by  me,  under  the  direction  of  the  President,  as  I 
am  sure  your  good  sense  will  think  inevitoble,  that  the  act  of  reci- 
procity demanded  should  be  performed."* 

Washington  wrote  Morris,  when  his  successor  went  out:  "I  have 
so  far  departed  from  my  determination  as  to  be  seated  in  order  to 
assure  you  that  my  confidence  in,  and  friendship  and  regard  for  you, 
remain  undiminished  *  *  and  it  will  be  nothing  new  to  assure  you 
that  I  am  always  and  very  sincerely,  yours,  affectionately ;"»  and  when 
his  correspondence  was  called  for  by  the  Senate,  Washington  himself, 
in  association  with  Hamilton  and  Randolph,  went  over  it  (and  it  was 
voluminous)  in  order  that  nothing  might  be  communicated  which 
would  put  in  peril  those  who  had  given  him  information,  or  which 
would  re-act  upon  him  in  France.* 

When  the  war  broke  out  in  February,  1793,  Morris  wrote  Jefferson: 
"As  to  the  conduct  of  the  war,  I  believe  it  to  be  on  the  part  of  the 
enemy  as  follows:  first,  the  maritime  powers  will  try  to  cut  off  all 
supplies  of  provisions,  and  take  France  by  famine;  that  is  to  say, 
excite  revolt  among  the  people  by  that  strong  lever.  *  *  It  is  not 
improbable  that  our  vessels  bringing  provisions  to  France  may  be  cap- 
tured and  taken  into  England."*  His  prescience  was  accurate.  Such 
instructions  were  given  to  British  men-of-war  on  the  8th  day  of  June, 
1793.  The  British  measure,  however,  was  anticipated  by  a  decree  of 
the  National  Convention  of  the  9th  of  May,  authorizing  ships  of  war 
and  privateers  to  seize  and  carry  into  the  ports  of  the  Republic  mer- 
chant-vessels which  are  wholly  or  in  part  loaded  with  provisions,  being 
neutral  property  bound  to  an  enemy's  port,  or  having  on  board  mer- 
chandise belonging  to  an  enemy.'  On  the  23d  of  the  same  month  the 
vessels  of  the  United  States  were  exempted  from  the  operation  of  this 
decree;'  but  on  the  5th  of  December,  1793.  President  Washington  sent 

»  Randolph  to  Morris,  April  29.  1794,  MS.  Dept.  of  State 

M  F.  R.  F.,  409. 

»  R.indoIph  to  Morris,  April  29,  1794.  MS.  Dept.  of  State 

M  F.  R.  F..  350.  0  ib 

» lb.,  244. 


HISTORICAL  INTRODUCTION 


9 


a  special  message  to  Congress,  in  which  he  said:  "The  representa- 
tive and  executive  bodies  of  France  have  manifested  generally  a 
friendly  attachment  to  this  country;  have  given  advantages  to  our 
commerce  and  navigation,  and  have  made  overtures  for  placing  these 
advantages  on  permanent  ground ;  a  decree,  however,  of  the  National 
Assembly,  subjecting  vessels  laden  with  provisions  to  be  carried  into 
their  ports,  and  making  enemies'  goods  lawful  prize  in  the  vessel  of  a 
friend,  contrary  to  our  Treaty,  though  revoked  at  one  time  as  to  the 
United  States,  has  been  since  extended  to  their  vessels  also,  and  has 
been  recently  stated  to  us."* 

An  embargo  was  laid  upon  vessels  in  the  port  of  Bordeaux,  "some 
exceptions  in  favor  of  those  vessels  said  to  be  loaded  on  account  of  the 
republic"  being  made.»  Morris  was  promised  daily  that  the  embargo 
should  be  taken  off,  and  indemnification  be  granted  for  the  losses,*  but 
it  was  not  done,  and  "a  number  of  Americans,"  injured  by  it,  com- 
plained to  the  Minister.*  The  embargo  was  not  removed  until  the  18th 
of  November,  1794.' 

Monroe  succeeded  Morris,  and  on  the  12th  of  Febnary,  1795,  wrote: 
"Upon  my  arrival  here  I  found  our  affairs  *  *  in  the  worst  possible 
situation.  The  Treaty  between  the  two  Republics  was  violated.  Our 
commerce  was  harassed  in  every  quarter  and  in  every  article,  even  that 
of  tobacco  not  excepted.  *  •  Our  former  Minister  was  not  only 
without  the  confidence  of  the  government,  but  an  object  of  particular 
jealousy  and  distrust.  In  addition  to  which  it  was  suspected  that  we 
were  about  to  abandon  them  for  a  connection  with  England,  and  for 
which  purpose  principally  it  was  believed  that  Mr.  Jay  had  been  sent 
there."' 

Monroe's  and  Jay's  services  commenced  nearly  simultaneously.  Mon- 
roe's commission  was  dated  the  28th  of  May,  and  Jay's  the  19th  of 
April,  1794.  Jay's  Treaty  was  proclaimed  the  29th  of  February,  1796. 
Monroe  was  not  recalled  until  the  22d  of  the  following  August,'  but 
the  angry  correspondence  which  preceded  his  recall'  may  be  said  to 
have  been  caused  by  a  radical  difference  of  opinion  respecting  his  col- 
leaijiie's  mission  to  London. 


U  F.  R.  R,  141. 
» lb..  401. 
'  Ih.,  403. 
*  lb.,  405. 


5  lb.,  689. 
«  lb.,  694. 
'  lb.,  741. 
» lb.,  658-741. 


10 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


Whatever  may  have  been  the  feeling  toward  Monroe's  predecessor, 
he  himself  was  well  received.  The  Committee  of  Public  Safety  wel- 
comed him  "with  the  most  distinguished  marks  of  affection,"  and 
offered  him  a  house,  which  offer  he  declined.*  He  remained  in  rela- 
tions of  personal  good-will  with  the  different  Governments  of  France, 
and  did  not  fail  to  urge  in  his  correspondence  with  the  Secretary  of 
State  the  policy  of  settling  the  differences  with  Great  Britain  by  an 
alliance  with  France:'  nor  did  he  conceal  those  opinions  from  the 
Government  to  which  he  was  accredited.'  While  the  relations  between 
Great  Britain  and  the  Uhited  States  were  balancing  themselves  in 
London  on  the  issue  of  Jay's  Treaty,  those  between  the  United  States 
and  France  were  held  in  like  suspense  in  Paris. 

Monroe  endeavored  to  obtain  from  Jay  a  knowledge  of  the  negotia- 
tions and  a  copy  of  the  Treaty.  Jay  refused  to  communicate  informa- 
tion, except  in  confidence,  and  Monroe  declined  to  receive  it  unless  he 
should  be  at  liberty  to  communicate  it  to  the  French  Government.* 
A  copy  was,  however,  officially  communicated  to  the  French  Minister 
at  Washington.'  When  the  fate  of  that  Treaty  was  ensured,  the 
directory  at  first  resolved  (and  so  informed  Monroe)  to  consider  the 
alliance  at  an  end,  but  they  gave  no  formal  notice  to  that  effect."  In 
lieu  of  that  they  lodged  with  him,  on  the  11th  of  March,  1796,  a  sum- 
mary exposition  of  the  complaints  of  the  French  Government  against 
the  Government  of  the  United  States,  namely,  (1.)  That  the  United 
States  Courts  took  jurisdiction  over  French  Prizes,  in  violation  of  the 
Treaty  of  1778.  (2.)  That  British  men-of-war  were  admitted  into 
American  ports  in  violation  of  the  same  article.  (3.)  That  the  United 
States  had  failed  to  empower  any  one  to  enforce  consular  judgments, 
which  was  alleged  to  be  a  violation  of  the  Convention  of  1788.  (4.) 
That  the  Captain  of  the  Cassias  had  been  arrested  in  Philadelphia 
for  an  offense  committed  on  the  high  seas.  (5.)  That  an  outrage  had 
been  committed  on  the  effects  of  the  French  Minister  within  the  waters 
of  the  United  States.  (6.)  That  by  Jay's  Treaty  the  number  of  articles 
contraband  of  war,  which  a  neutral  might  not  carry,  had  been  in- 
creased abo/e  the  list  specified  in  the  treaties  with  France,  which  was 


1 1  F.  R.  F.,  675. 

'  See,  among  others,  his  letters  in  1  F.  R.  F.  of  Nov.  20.  1794.  685 ;  Dec.  2, 
1794.  687;  Jan.  13.  1795,  691;  Feb.  12,  1795,  694:  and  Mar:h  17,  1795,  700. 
'  lb.,  700.  » lb.,  594. 

♦  lb.,  517.  691.  700.  •  lb.,  730. 


HISTORICAL  INTRODUCTION 


11 


a  favor  to  England.    (7.)  That  provisions  had  been  recognized  in  Jay's 
Treaty  as  an  article  contraband  of  war.' 

On  the  2d  of  July,  1796,  the  directory  decreed  that  all  neutral  or 
allied  powders  should,  without  delay,  be  notified  that  the  flag  of  the 
French  Republic  would  treat  neutral  vessels,  either  as  to  confiscation, 
or  to  searches,  or  capture,  in  the  same  manner  as  they  shall  suffer  the 
English  to  treat  them.*  Garden  says  that  a  second  decree  relating  to 
the  same  object  was  made  on  the  16th  of  the  same  month,  and  that 
neither  decree  has  been  printed.  The  translation  of  the  first  one  is 
printed  among  the  American  documents  cited  above,  as  also  the  trans- 
lation of  a  note  transmitting  it  to  Monroe.'  Garden  refers  to  Ron- 
donneau.  Repertoire  general  de  la  Legislation  frangaise.  Vol.  II,  p. 
311,  for  the  text  of  the  second.* 

Pickering,  the  successor  of  Randolph,  noticed  the  complaints  of  the 
French  Government  in  elaborate  instructions  to  Pinckney,  Monroe's 
successor,  on  the  16th  of  January,  1797."  His  replies  were  in  sub- 
stance, (1.)  That  the  courts  had  taken  jurisdiction  over  no  prizes, 
except  when  they  were  alleged  to  have  been  made  in  violation  of  the 
obligations  of  the  United  States  as  a  neutiol,  and  that  the  cases  in 
which  interference  had  taken  place  were  few  in  number  ai.d  insignifi- 
cant. (2.)  That  it  was  no  violation  '  the  Treaty  with  France  to 
admit  British  ships  of  war  into  Ai.  an  ports,  provided  British 
privateers  and  prizes  were  excluded.  ^  .)  That  there  was  no  Treaty 
obligation  upon  officers  of  the  United  States  to  enforce  French  con- 
sular judgments,  and  that  the  clause  referred  to  was  exceptional  and 
ought  not  to  be  enlarged  by  construction.  (4.)  The  facts  respect- 
ing the  Cassius  were  stated  in  order  to  show  that  no  uflfense  had 
been  committed.  (5.)  That  the  executive  had  taken  as  efficacious 
measures  as  it  could  to  obtain  satisfaction  for  the  outrage  upon  Fau- 
chet.  (6.)  That  the  United  States  would  gladly  have  put  the  defini- 
tion of  contraband  on  the  same  basis  in  its  Treaties  with  both  coun- 
tries; but  that  Great  Britain  would  not  consent,  and  an  independent 
arrangement  had  been  made  which  did  not  affect  the  other  Treaty 
arrangement  made  with  France.  (7.)  That  the  stipulation  as  to  pro- 
visions, without  admitting  the  principle  that  provisions  were  contra- 
band, would  tend  to  promote  adventures  in  that  article  to  France. 


>  1  F.  R.  F.,  732^. 
2  lb.,  577. 
« lb.,  739. 


*6  Garden,  Traites  de  Paix,  112,  note. 
» 1  F.  R.  F.,  559. 


12 


THE  CONTROVERSY  WITH  FRANCE,  lW-1800 


A  correspondence  respecting  the  same  subject  had  also  taken  place 
at  Washington,  in  which  the  same  complaints  of  the  directory  were 
repeated  and  other  complaints  were  urged.'  To  the  latter  Pickering 
responded  thus,  in  the  same  note  in  which  he  noticed  the  complaints 
which  had  been  made  in  Paris:  (1.)  Charge.— That  the  negotiation 
at  London  had  been  "enveloped  from  its  origin  in  the  shadow  of 
mystery,  and  covered  with  the  veil  of  dissimulation."*  Reply.— "To 
whom  was  our  Government  bound  to  unveil  it?  To  France  or  to  her 
Minister?  *  Did  we  stipulate  to  submit  the  exercise  of  our  sover- 
eignty ♦  ♦  to  the  direction  of  the  Government  of  France?  Let 
the  Treaty  itself  furnish  an  answer.""  (2.)  Charge. — That  the  Gov- 
ernment of  the  United  States  had  made  an  insidious  proclamation  of 
neutrality.  Reply. — That  "this  proclamation  received  the  pointed  ap- 
probation of  Congress,"  and  "of  the  great  body  of  the  citizens  of  the 
United  States."  (3.)  Charge.— That  the  United  States  "suffered  Eng- 
la  ,d,  by  insulting  its  neutrality,  to  interrupt  its  commerce  with  France." 
Reply. — That  a  satisfaction  had  been  demanded  and  obtained  in  a 
peaceable  manner — by  Treaty,  and  not  by  war.  (4.)  Charge. — That 
they  "allowed  the  French  colonies  to  be  declared  in  a  state  of  block- 
ade." Reply.— Th&t  the  United  States,  as  a  neutral,  could  only  ques- 
tion the  sufficiency  of  a  blockade,  and  that  they  would  do  so  when 
facts  should  warrant  it.  (5.)  Charge.— Thit  the  Ukiited  States  eluded 
advances  for  renewing  the  Treaties  of  commerce.  Reply. — That  Genet 
was  the  first  French  Minister  who  had  been  empowered  to  treat  on 
those  subjects,  and  the  reasons  for  not  treating  with  him  were  well 
known ;  that  his  successor,  Fauchet,  had  not  been  so  empowered,  and 
that  the  United  States  had  always  been  ready  to  negotiate  with  Adet, 
and  all  obstacles  had  come  from  him  since  the  ratification  of  Jay's 
Treaty.  (6.)  Charge.— Th^it  the  United  States  were  guilty  of  ingrati- 
tude towards  France.  Reply. — That  the  United  States,  appreciating 
their  obligations  to  France,  had  done  something  themselves  towards 
the  achievement  of  their  independence ;  that,  "of  all  the  loans  received 
from  France  in  the  American  war,  amounting  nearly  to  53,000,000 
iivres,  the  United  States  under  their  late  Government  had  been  enabled 
to  pay  but  2,.SOO,000  Iivres ;  that  the  present  Government,  after  paying 
up  the  arrearages  and  installments  mentioned  by  Mr.  Jefferson,  had 
been  continually  anticipating  the  subsequent  installments  until,  in  the 
year  1795,  the  whole  of  our  debt  to  France  was  discharged  by  the 


1 1  F.  R.  F.,  579. 
>  lb.,  581. 


s  lb..  561. 


HISTORICAL  INTRODUCTION 


13 


payment  oi  11,500,000  li^  .es,  no  part  of  which  would  have  become  due 
until  September  2,  1796,  and  then  only  1,500,000,  the  residue  at  subse- 
quent periods,  fhe  last  not  until  1802."  (7.)  Charge.— That  English 
vessels  were  impressing  American  seamen.  Reply.— That  this  con- 
cerned the  Government  of  the  United  States  only;  and  that  as  an 
independent  nation  they  are  not  obliged  to  account  to  any  other  power 
respecting  the  measures  which  they  judge  proper  to  take  in  order  to 
protect  their  own  citizens.  Other  less  important  points  were  dis- 
cussed, as  will  be  seen  by  referring  to  the  correspondence. 

The  course  of  the  French  was  giving  rise  to  many  claims — for  spolia- 
tions and  maltreatment  of  vessels  at  sea,  for  losses  by  the  embargo 
at  Bordeaux,  for  the  non-payment  of  drafts  drawn  by  the  colonial 
administrations,  for  the  seizure  of  cargoes  of  vessels,  for  non-p<r- 
formance  of  contracts  by  government  agents,  for  condemnation  of 
vessels  and  their  cargoes  in  violation  of  the  provisions  of  the  Treaties 
of  1778,  and  for  captures  under  the  decree  of  May  9,  1793.  Skipwith, 
the  Consul-General  of  the  United  States  in  France,  was  directed  to 
e -amine  into  and  report  upon  these  claims;  his  report  was  made  on 
t-     iOth  November,  1795.* 

^n  the  9th  of  September,  1796,  Charles  Cotesworth  Pinckney  was 
sent  out  to  replace  Monroe,  with  a  letter  from  the  Secretary  of  Stote, 
saying:  "The  claims  of  the  American  merchants  on  the  French  Re- 
public are  of  great  extent,  and  they  are  waiting  the  issue  of  them, 
through  the  public  agents,  with  much  impatience.  Mr.  Pinckney  is 
particularly  charged  to  look  into  this  business,  in  which  the  serious 
interests,  and.  in  some  cases,  nearly  the  whole  fortunes  of  our  citi- 
zens are  involved."*  But  the  directory,  early  in  October,  1793,  recalled 
their  Minister  from  the  United  States.*  Before  Pinckney  could  arrive 
in  France,  they,  "in  order  to  strike  a  mortal  blow,  at  the  same  moment, 
to  British  industry  and  the  profitable  trade  of  Americans  in  France, 
promulgated  the  famous  law  of  the  10th  Brumaire,  year  5  (31st  Oc- 
tober, 1796),  whereby  the  importation  of  manufactured  articles, 
whether  of  English  make  or  of  English  commerce,  was  prohibited  both 
by  land  and  sea  throughout  the  French  Republic"  ;*  and,  on  his  arrival, 
they  informed  Monroe  that  the  directory  would  no  longer  recognize  or 
receive  a  Minister  Plenipotentiary  from  the  United  States,  until  after 
a  reparation  of  the  grievances  demanded  of  the  American  Govern- 
ment, and  which  the  French  Republic  has  a  right  to  expect."' 


:::m 


11% 


•  1  F.  R.  F.,  753-7S8. 
2  lb..  742. 
« lb.,  745. 


*6  Garden.  Traites  de  Paix.  11 
•  1  F.  R.  P.,  746. 


14 


THE  CONTROV'ERSY  WITH  FRANCE.  1797-1800 


Pinckney  was  thereupon  ordered  to  quit  France  under  circumstances 
of  great  indignity,'  and  Monroe  took  his  formal  leave  on  the  30th 
December,  1796.    In  reply  to  his  speech  at  that  time,  the  president  of 
the  directory  said :    "By  presenting,  this  day,  to  the  Executive  Direc- 
tory your  letters  of  recall,  you  offer  a  very  strange  spectacle  to  Eu- 
rope.    France,  rich  in  her  freedom,  surrounded  by  the  train  of  her 
victories,  and  strong  in  the  esteem  of  her  allies,  will  not  stoop  to  cal- 
culate the  consequences  of  the  condescension  of  the  American  Gov- 
ernment to  the  wishes  of  its  ancient  tyrants.     The  French  Republic 
expects,  however,  that  the  successors  of  Columbus,  Raleigh,  and  Penn, 
always  proud  of  their  liberty,  will  never  forget  that  they  owe  it  to 
France.    They  will  weigh,  in  their  wisdom,  the  magnanimous  friend- 
ship of  the  French  people  with  the  crafty  caresses  of  perfidious  men, 
who  meditate  to  bring  them  again  under  their  former  yoke.    Assure 
the  good  people  of  America,  Mr.  Minister,  that,  like  them,  we  adore 
liberty ;  that  they  will  always  possess  our  esteem,  and  find  in  the  French 
people  that  republican  generosity  which  knows  how  to  grant  peace  as 
well  as  to  cause  its  sovereignty  to  be  respected."* 

The  moment  this  speech  was  concluded,  the  directory,  accompanied 
by  the  Diplomatic  Corps,  passed  into  the  audience-hall  to  receive  from 
an  Aide-de-Camp  of  Bonaparte  the  four  .Austrian  colors  taken  at  the 
battle  of  Areola."  The  Diplomatic  Corps  may,  therefore,  be  pre- 
sumed to  have  witnessed  this  indignity. 

^^  A  French  writer  of  authority  thus  characterizes  these  incidents: 
"Ainsi  ce  gouvemement  i)retendait  que  les  £tats-unis  accedassent  a 
ses  demandes  sans  examen,  sans  discussion  prealable;  a  cet  outrage, 
le  gouvemement  fran(;ais  en  ajouta  un  autre:  lorsque  M.  Monroe  prit 
publiqnement  conge  du  direct.iire  executif,  Barras.  qui  en  etait  le  pre- 
sident, lui  adressa  un  discours  rempli  d'expressions  qui  durent  choquer 
les  Americains."* 

In  closing  the  sketch  of  what  took  place  during  the  administration 
of  Presiiient  Washington,  it  only  remains  to  say  that  in  addition  to 
the  acts  of  the  2d  of  July  and  the  .list  of  October,  1/"%.  already  re- 


'  Rcdacteur,  No.  3H2,  Jan.  1,  1797. 


'  2  F.  R.  F,  710. 
'  1  F.  R.  F,  747. 

l'n;l'  a'^<^'."-  "^I^'^i^  '*'  ^Z'*'  '•'^-  .'"^^"^  »'''»  Rovcrnmfnt  pretended  that  the 
Lnited  States  should  accede  to  its  demands  without  examination,  without  dis- 
cussion To  this  outrage  the  French  Government  added  another :  While  Mr 
Monroe  took  puhhc  leave  oi  the  Executive  Directory,  Barras,  who  was  the 
presirjent,  made  him  a  speech  full  of  expressions  calculated  to  shock  the  Amer- 

ICUIS* 


* 


HISTORICAL  INTRODUCTION  15 

ferred  to.  the  Executive  Directory:,  on  the  2d  of  March,  1797,  decreed 
that  all  neutral  ships  with  enemy's  property  on  board  might  be  cap- 
tures cnat  enemy's  property  in  neutral  bottoms  might  be  confiscated; 
that  the  Treaty  of  1/78  with  the  United  States  should  be  modified  by 
the  operation  of  the  favored  nation  clause,  so  as  to  conform  to  Jays 
Treaty,  m  the  following  respects:  (1)  That  property  in  American 
bottoms  not  proved  to  be  neutral  should  be  confiscated;  (2)  That  the 
list  of  contraband  of  war  should  be  made  to  conform  to  Jay's  Treaty 
(3)    .hat  Americans  taking  a  commission  against  France  should  be 

'T'u    u    ^'J"**"-  ''"''  *'"''  ^^^^y  American  ship  should  be  good  prize 
which  should  not  have  on  board  a  crew-list  in  the  fom  prescribed  by 
the  model  annexed  to  the  Treaty  of  1778,  the  observance  of  which 
was  required  by  the  25th  and  27th  Articles.'    The  25th  Article  made 
provision  for  a  passport,  and  for  a  certificate  of  cargo.     The  27th 
Article  took  notice  only  of  the  passport;  and  the  model  of  the  passport 
only  was  annexed  to  the  Treaty.    The  Treaty  required  that  the  pass- 
port should  express  the  name,  property,  and  bulk  of  the  ship,  and  the 
name  and  place  of  habitation  of  the  master,  but  it  made  no  provision 
respecting  the  crew-list.    After  the  adoption  of  the  Constitution,  Con- 
gress, by  general  laws,  made  provision  for  national  official  documents 
for  proof  of,  among  other  things,  the  facts  referred  to  in  the  25th  and 
27th  Articles  of  the  Treaty  with  France.    The  name  of  the  ship  was 
to  be  painted  on  her  stern,  and  to  be  shown  in  the  Register;'  her  own- 
ership was  to  be  proved  on  oaih.  and  be  stated  in  the  Register »  and 
her  tonnage  was  to  be  stated  in  the  same  instrument,  .is  the  result  of 
our  official  survey.*     Equally  cogent  lav.s  were  made  to  ensure  an 
accurate  crew-list.»    It  is  probable,  therefore,  that  when  the  decree  of 
March  2,  1797,  was  made,  there  was  not  an  American  ship  artoat  wit'i 
the  required  document;  and  it  is  e.|uallv  probable  that  the   French 
Government,  which,  with  the  whole  civilized  world,  had  acquiesced  in 
the  sufficiency  of  the  new  naticnal  svstem.  knew  that  to  be  the  fact 
The  decree  was  therefore,  equivalent  in  its  operation  to  a  declaration 
of  maritime  war  against  Americm  commerce.    The  United  States  had 
at  that  time  no  navy  against  which  such  a  war  could  Ik-  carried  on 

The  difficulties  in  dealing  with  tliese  questions  were  increased  l)v  the 
attitude  of  other  foreign  p^nvers.    The  Batavian  Republic  besought  the 


'  2  F.  R.  R.  31. 

'  1  St.  at  I..,  288. 
•  lb.,  289. 


Ml...  290;  see  also  Ih..  55.  el  seq 
'  lb.,  3\. 


16 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


United  States  Minister  to  represent  to  his  Government  "how  useful  it 
would  bt  .0  the  interests  of  the  inhabitants  of  the  two  republics,  that 
the  United  States  should  at  last  seriously  take  to  heart  the  num- 
berless insults  daily  committed  on  their  flag  by  the  English" ;'  and  the 
Spanish  Minister  at  Philadelphia  formally  remonstrated  against  the 
British  Treaty  of  1794  as  a  violation  of  a  Treaty  with  Spain  concluded 
a  year  latei ,  because  it  did  not  make  the  neutral  flag  secure  the  goods ; 
because  it  extended  the  list  of  contraband;  and  because  it  assumed 
that  Great  Britain  had  the  right  of  navigation  of  the  Mississippi.' 

President  Adams,  in  his  speech  at  the  opening  of  the  first  session 
of  the  Fifth  Congress  (May  16,  1797),  said:  "With  this  conduct  of 
the  French  Government  it  will  be  proper  to  take  into  view  the  public 
audience  given  to  the  late  minister  of  the  United  States,  on  his  taking 
leave  of  the  Executive  Directory.  The  speech  of  the  President  dis- 
closes sentiments  more  alarming  than  the  refusal  of  a  minister,  because 
m  '.e  dangerous  to  our  independence  and  union,  and  at  the  same  me 
studiously  marked  with  indignities  towards  the  Government  of  the 
United  States.  It  evinces  a  disposition  to  separate  the  people  of  the 
United  States  from  the  Government ;  to  persuade  them  that  they  have 
different  affections,  princif^es,  and  interests  from  those  of  their  fel- 
low-citizens whom  they  themselves  have  chosen  to  manage  their  com- 
mon concerns ;  and  thus,  to  produce  divisions  fatal  to  our  peace.  Such 
attempts  ought  to  be  repelled  with  a  decision  which  shall  convince 
France  and  the  world  that  we  are  not  a  degraded  people,  humiliated 
under  a  colonial  spirit  of  fear  and  sense  of  inferiority,  fitted  to  be  the 
miserable  instalments  of  foreign  influence,  and  regardless  of  national 
honor,  character,  and  interest.     •     ♦     * 

"The  diplomatic  intercourse  between  the  United  States  and  France 
being  at  present  suspended,  the  Government  has  no  means  of  obtaining 
official  informaiion  from  that  country;  nevertheless  there  is  reason  to 
believe  that  the  Executive  Directory  passed  a  decree  on  the  2d  of 
.March  last,  contravening,  in  part,  the  treaty  of  amity  and  commerce 
of  1778,  injurious  to  our  lawful  commerce,  and  endangering  the  lives 
of  our  citizens.    A  copy  of  this  treaty  will  be  laid  before  you. 

"While  we  are  endcavo.ing  to  adjust  all  of  our  differences  with 
France,  by  amicable  negotiation,  the  progress  of  the  war  in  Europe,  the 
(le;  rcdations  on  our  commerce,  the  personal  injuries  to  our  citizens, 
and  general  complexion  of  affairs,  render  it  my  indispensable  duty  to 
recommend  to  your  consideration  effectual  measures  of  defence.* 


1  2  F.  R.  F.  n. 


»Ib..  14. 


"  Annali  Sth  Cong.,  55. 


I 


I 


HISTORICAL  INTRODUCTION  17 

"It  is  impossible  to  conceal  from  ourselves,  or  the  world,  what  has 
been  before  observed,  that  endeavors  have  been  employed  to  foster  and 
establish  a  division  between  the  government  and  people  of  the  United 
States.  To  investigate  the  causes  which  have  encouraged  this  attempt 
IS  not  necessary.  But  to  repel,  by  decided  a.nd  united  counsels,  insinua- 
tions so  derogatory  to  the  honor,  and  aggression  so  dangerous  to  the 
Constitution,  union,  and  even  independence  of  the  nation,  is  an  indis- 
pensable duty."' 

The  answer  of  the  House  to  this  speech  was  in  a  conciliatory  spirit; 
and  on  the  first  of  the  following  June  Congress  yielded  so  far  as  to 
pass  a  law  providing  for  passports  for  ships  and  vessels  of  the  United 
States.* 

Congress  adjourned  on  the  10th  of  July.  On  the  13th  President 
Adams  commissioned  Charles  Cotesworth  Pinckney,  John  Marshall 
and  Elbridge  Gerry  as  Envoys  to  proceed  to  France  and  endeavor  to 
renew  the  relations  which  had  been  so  rudely  broken  by  the  Directory 
Their  instructions  will  be  found  in  the  2d  volume  of  the  Folio  Foreign 
Relations,  papes  153,  et  seq.  Among  other  matters  they  were  to  secure 
an  adjustment  of  the  claims  for  spoliations  of  citizens  of  the  United 
States,  b}  this  time  amounting  to  many  millions  of  dollars. 

They  arrived  in  Paris  on  tht  fnlng  of  the  4th  of  October  1797 » 
and  at  once  notified  the  Foreign  :  ister  of  their  presence  Ind  re- 
quested an  interview.  Instead  of  receiving  ihem,  three  gentlemen 
who  have  become  known  in  history  as  X,  Y,  and  Z,  waited  upon  them' 
at  various  times,  sometimes  singly  and  sometimes  together,  and 
claimed  to  speak  for  Talleyrand  and  the  Directory.  They  told  the 
Envoys  that  they  must  pay  money,  "a  great  deal  of  money"  •«  and 
when  they  were  asked  how  much,  they  replied  "fifty  thousand  pounds 
sterling'"  as  a  douceur  to  the  Directory,  and  a  loan  to  France  of 
thirty-two  millions  of  Dutch  florins.  They  said  that  the  passages  in 
the  President's  speech,  which  are  quoted  above,  had  offended  the 
Directory,  and  must  be  retracted,  and  they  urged  upon  the  commis- 
sioners m  repeated  interviews  the  nece.  ity  of  opening  the  negotia- 
tions by  proposals  to  that  effect." 

The  American  commissioners  listened  to  their  statements,  and  after 
consultation  -letermined  that  they  "should  hold  no  more  indirect  inter- 


'  Annals  5th  Conif.  59. 
»  '  St.  at  L..  489. 
'2  F.  R.  F.  157. 


*  lb..  1.S9. 

•lb. 

"Ik,  15ai68 


18 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


course  with  the  Government.'  They  addressed  a  letter  to  Talleyrand 
on  the  11th  of  November,  informing  him  that  they  were  ready  to  nego- 
tiate.* They  got  no  answer ;  hut  on  the  14th  of  December,  X  appeared 
again,'  on  the  17th  Y  appeared,*  and  on  the  20th  "a  lady,  who  is  well 
acquainted  with  M.  Talleyrand,"  talked  to  Pinckney  on  the  subject;' 
still  they  got  no  answer  from  Talleyrand,  and  on  the  18th  of  January 
they  read  the  announcement  of  a  decree  that  every  vessel  found  at  sea 
loaded  with  merchandise  the  production  of  England  should  be  good 
prize.*  Though  unrecognized,  they  addressed  an  elaborate  letter  on 
the  27th  of  January,  1798,  to  Talleyrand,  setting  forth  in  detail  and 
with  great  ability  the  grievances  of  the  United  States.'  On  the  2d 
of  March,  they  had  an  interview  with  him.  He  repeated  that  the 
Directory  had  taken  offense  at  Mr.  Adams's  speech,  and  added  that 
♦hey  had  been  wounded  by  the  last  speech  of  President  Washington. 
He  complained  that  the  Envoys  had  not  been  to  see  him  personally ; 
and  he  urged  that  they  should  propose  a  loan  to  France.'  Pinckney 
said  that  the  propositions  seemed  to  be  those  made  by  X  and  Y.  The 
Envoys  then  said  that  they  had  no  power  to  agre  .  make  such  a  loan. 
On  the  18th  of  March,  Talleyrand  transmitted  hi-;  reply  to  their  note. 
He  dwelt  upon  Jay's  Treaty  as  the  principal  grievance  of  France.  He 
says  "he  will  content  himself  with  observing,  summarily,  that  in  this 
Treaty  everything  having  been  calculated  to  turn  the  neutrality  of  the 
United  States  to  the  disadvantage  of  the  French  Republic,  and  to  the 
advantage  of  Englanu ;  that  the  Federal  Government  having  in  this 
act  made  to  Great  Britain  c'"ncessions  the  mo.st  unheard  of,  the  most 
incompatible  with  the  interests  of  the  United  States,  the  most  deroga- 
tor>-  to  the  alliance  which  subsisted  between  the  said  States  and  the 
French  Republic,  the  latter  was  perfectly  free,  in  order  to  avoid  the 
inconveniences  of  the  Treaty  of  London,  to  avail  itself  of  the  preserva- 
tive means  with  which  the  law  of  nature,  the  laws  of  nation?,  and  prior 
treaties  furnish  it."  He  closed  by  staging  "that  notwithstanding  the 
kind  of  prejudice  which  has  been  ;;ntertained  with  respect  to  them, 
the  Executive  Directory*  is  disposed  to  treat  with  that  one  of  the  three 
whose  opinions,  presumed  to  be  more  impartial,  promise,  in  the  course 
of  the  explanation,  more  of  that  reciprocal  confidence  which  is  indis- 
pensable."* 


'2  F 

R.  F 

»  IK, 

166. 

Mb. 

♦  lb., 

177. 

Mb.. 

167. 

Ift4. 


•  1  F.  R.  F.,  182. 
'  lb.,  169. 

■Ih.,  18  J. 

•  IK     100-19!. 


HISTORICAL  INTRODUCTION 


19 


Gerry  was  the  member  referred  to.  The  three  Envoys  answered 
that  no  one  of  the  three  was  authorized  to  take  the  negotiation  upon 
himself.'  Pinckney  and  Marshall  then  left  Paris.  Gerry  remained. 
Talleyrand  tried  to  induce  him  to  enter  into  negotiations  for  a  loan  to 
France,  but  he  refused.''  Before  he  left  Paris,  a  mail  arrived  from 
America  bringing  printed  copies  of  the  despatches  of  the  Envoys,  with 
accounts  of  their  interviews  with  X,  Y,  and  Z  and  "the  lady."  Talley- 
rand at  once  asked  Gerry  for  the  four  names.^  Gerry  gave  him  the 
name  of  Y,  Mr.  Bellamy,  and  Z,  Mr.  Hautval,  and  said  that  he  could 
not  give  the  lady's  name,  and  would  not  give  X's  name.  The  name  of 
X  is  preserved  in  the  Department  of  State.  Gerry  left  Paris  on  the 
26th  July,  1798. 

The  President  transmitted  to  Congresr  the  reports  of  the  Envoys 
as  fast  as  they  were  received;  and  when  he  heard  of  Marshall's  ar- 
rival in  America  he  said  to  Congress,  "I  will  never  send  another  Min- 
ister to  France  without  assurances  that  he  will  be  received,  re- 
spected, and  honored  as  the  representative  of  a  great,  free,  powerful, 
and  independent  nation."*  The  statutes  of  the  United  States  show 
the  impression  which  the  news  made  upon  Congress.  The  "Act  to 
provide  an  additional  armament  for  the  further  protection  of  the  trade 
of  the  United  States,  and  for  other  purposes."'  is  the  first  of  a  series 
of  acts.  It  was  passed  in  the  House  ...nid  great  excitement.  Edward 
Livingston,  who  closed  the  debate  on  the  part  of  the  opposition,  said : 
"Let  no  man  flatter  himself  that  the  vote  which  has  been  given  is  not 
a  declaration  of  war.  Gentlemen  knov,^  that  this  is  the  case."*  This 
was  followed  in  the  course  of  a  few  weeks  by  acts  for  organizing  a 
Navy  Department ;'  for  increasing  or  regulating  the  Army ;«  for  pur- 
chasin  r  arms  ;•  for  construction  of  vessels  ;•»  for  authorizing  the  cap- 
ture of  French  vessels ;"  for  suspending  all  intercourse  with  France  ;•* 
for  authorizing  merclianc-vessels  to  protect  themselves ;"  for  abrogat- 
ing the  Treaties  with  France ;"  for  establishing  a  Marine  Corps ;"  and 


•  1  F.  R.  R,  199. 

» lb..  204-238. 

»  lb..  210. 

«Ib..  199. 

»  1  St.  ;.t  L..  oS2. 

«2  Annals  5th  Cong..  1519. 

'  J  St.  at  L..  553. 

»  lb..  SS2,  558.  604. 


•  lb..  555.  576. 

">  Ih..  556.  504,  W)8. 

"  lb..  561.  •'7ii. 

•2  lb.,  .^65. 

'•1  lb..  57Z 

'« lb.,  578. 

"  lb.,  .^^04 


20 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


for  authorizing  the  borrowing  of  money.'  In  the  next  session  of  Con- 
gress further  augmentation  of  the  Navy'  and  of  the  Army*  was  made ; 
the  suspension  of  intercourse  was  prolonged,*  and  provisions  were 
made  for  restoring  captured  French  citizens,"  and  for  retaliations  in 
case  of  death  from  impressments.* 

Washington  was  made  Lieutenant-General  and  Commander-in-Chief 
of  the  Army,  and,  in  accepting,  said :  "The  conduct  of  the  Directory 
of  France  towards  our  country ;  their  insidious  hostility  to  its  Govern- 
ment ;  their  various  practices  to  withdraw  the  affections  of  the  people 
from  it ;  the  evident  tendency  of  their  acts  and  those  of  their  agents  to 
countenance  and  invigorate  opposition;  their  disregard  of  solemn 
treaties  and  the  law  of  nations;  their  war  uff-n  our  defenceless  com- 
merce ;  their  treatment  of  our  Ministers  of  i  ^ce ;  and  their  demands, 
amounting  to  tribute,  could  not  fail  to  excite  i.i  me  corresponding  senti- 
ments with  those  my  countrymen  have  so  generally  expressed  in  affec- 
tionate addresses  to  you."' 

TTie  Attorney-General  gave  an  opinion  that  a  maritime  war  existed 
between  France  and  the  United  States,  authorized  by  both  nations,* 
but  Congress  never  made  the  constitutional  declaration  of  war,  nor  was 
such  a  declaration  made  on  the  other  side. 

It  was  on  the  21st  of  June  that  President  Adams  informed  Congress 
of  the  terms  on  which  alone  he  would  be  willing  to  send  a  new  Minister 
to  France.  Talleyrand  immediately  opened  indirect  means  of  com- 
munication with  the  American  CaKinet  through  Murray,  the  .\merican 
Minister  at  The  Hague,*  and  on  the  28th  of  September  he  sent  word 
through  Pichon,  the  French  Secretary  of  Legation  at  the  same  place, 
that  "whatever  plenipotentiary  the  Government  of  the  United  States 
might  send  to  France  in  order  to  terminate  the  existing  differences 
between  the  two  countries,  he  would  be  undoubtedly  received  with  the 
respect  due  to  the  representative  of  a  free,  independent  and  powerful 
nation."  To  this  proffer,  embodying  the  language  of  the  President's 
message  to  Congress,  the  President  replied  by  empowering  Chief- 
Justice  Ellsworth,  Mr.  Davie,  and  Mr.  Murray  "to  discuss  and  settle, 
by  a  TreaiV.  all  controversies  between  the  United  States  and  France."" 

When  these  Envoys  arrived  in  France  they  found  that  the  Directory 


1  1  St.  at  L.,  607. 

>  lb.,  621. 

•  lb.,  725. 

« lb.,  613. 

» lb..  624. 

«  IK.  743. 


'  Annals  5th  Cong.,  622. 
» 1  Op.  At.  Gen.,  84.  Lee. 
X2  F.  R.  F.,  241. 
'«  Ih..  242. 
"  Ih..  243. 


■1 


HISTORICAL  INTRODUCTION 


21 


had  been  overthrown,*  and  they  had  to  deal  with  Bonaparte  as  first 
Consul.  They  succeeded  in  restoring  good  relations.  An  account  of 
their  negotiations  will  be  found  in  the  2d  volume  of  the  Folio  Edition 
of  the  Foreign  Relations,  pages  307  to  345.  Their  instructions  required 
them  to  secure,  (1)  A  claims  commission.  (2)  Abrogation  of  the  old 
treaties.  (3)  Abolition  of  the  guarantee  of  1778.  (4)  No  agreement 
for  a  loan.  (5)  No  engagements  inconsistent  with  prior  Treaties, 
meaning  doubtless  Jay's  Treaty.  (6)  No  renewal  of  the  peculiar 
jurisdiction  conferred  on  consuls  by  the  convention  of  1788.  (7) 
Duration  of  a  Treaty  not  to  exceed  twelve  years.' 

The  negotiators  exchanged  their  powers  on  the  7th  of  April,  1800,» 
and  concluded  a  treaty  on  the  30Ji  of  the  following  September,  which 
(1)  declared  that  the  parties  could  not  agree  upon  the  indemnities;  (2) 
nor  as  to  the  old  treaties;  (3)  and  consequently  was  silent  respecting 
the  guarantee;  but  (4)  made  no  provisions  for  a  loan;  (5)  made  no 
engagements  inconsistent  with  prior  treaties;  (6)  did  not  renew  the 
objectionable  consular  provisions;  and  (7)  no  limitation  was  set  to  its 
operation. 

When  it  was  submitted  to  the  Senate  that  body  advised  its  ratifica- 
tion, provided  the  second  article  concerning  indemnities  should  be  ex- 
punged, and  that  the  convention  should  be  in  force  for  eight  years 
from  the  date  of  the  exchange  of  the  ratifications.  The  French  Gov- 
ernment assented  to  the  limitation  of  the  duration  of  the  Treaty,  and 
to  the  expunging  of  the  2d  article,  upon  condition  that  it  should  be 
understood  that  thereby  each  party  renounced  the  pretensions  which 
were  the  objects  of  the  article ;  which  was  assented  to  by  the  Senate.* 
On  the  day  following  the  signature  of  this  Treaty  in  Paris  (Sept. 
30,  1800),  a  secret  treaty  was  concluded  at  St.  Ildefonso  between 
France  and  Spain,  which  came  to  be  of  importance  to  the  United 
States.  This  was  the  Treaty  by  which  Louisiana  was  restored  to 
France.  In  consideration  of  the  elevation  of  the  Duke  of  Parma  to 
the  rank  of  King,  and  the  enhrgement  of  his  territory,  it  was  agreed 
that  "Sa  Majeste  Catholique  donnera  les  ordres  necessatres  pour  que 
la  France  occupe  !a  Louisiane  au  moment  oil  S.  A.  R.  le  due  de  Parme 
sera  mise  en  possession  de  ses  nouveaux  Etats."' 

>  2  F.  R.  F.,  307.  »  rh..  31^14. 

'  lb..  306.  4  lb.,  344. 

»8  Garden,  Traites  de  Paix,  48;  S.  Doc.  56.  2d  Sess.  23d  Cong.  "His  Catholic 
Majesty  will  give  the  necessary  orders  so  that  France  may  occupy  Louisiana 
the  moment  when  His  Royal  Highness  the  Duk.  .f  Parma  shall  be  put  in  pos- 
=e??!on  of  his  new  State. 


•'.*. 


1 


22 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


The  United  States  were  anxious  concerning  the  effect  of  this  upon 
their  future.'  But  the  failure  of  the  Treaty  of  Amiens  to  restore  a 
permanent  peace  induced  Napoleon  to  determine  to  transfer  all  the 
Louisianas  to  the  United  States.  He  consulted  Berthier  and  Marbois. 
The  conference  lasted  far  into  the  night.  Berthier  opposed  the  ces- 
sion. Marbois  favored  it.  Early  the  next  morning  he  called  Marbois 
to  him  and  said,  "Je  nonce  a  la  Louisiane.  Ce  n'est  point  seulement  la 
Nouvelle-Orleans  que  je  veux  ceder;  c'est  toute  la  colonie  sans  en 
rien  reserver."' 

The  interview  took  place  on  the  10th  of  April;'  the  decision  was 
made  on  the  morning  of  the  11th.  On  the  afternoon  of  the  same  day 
the  negotiations  opened  by  an  abrupt  question  from  Talleyrand  to  Liv- 
ingston whether  the  United  States  wished  for  the  whole  of  Louisiana. 
Livingston,  who  had  been  instructed  only  to  negotiate  for  New  Or- 
leans, and  the  Mississippi  as  a  boundary  line,*  said,  "No,  we  only 
want  New  Orleans  and  the  Floridas."'  But  he  soon  found  that  he  was 
dealing  v.ith  a  much  larger  question,  and  Monroe  arrived  the  same 
day  from  America  with  fresh  instructions  to  aid  in  its  disposition. 
Napol  ;o:,  empowered  Marbois  to  negotiate  for  France,  and  instructed 
him  to  consent  to  the  transfer,  provided  he  could  secure  50,000,000 
francs.  He  did  secure  80,000,000,  twenty  millions  of  whicli  were  to 
be  applicable  to  the  extinguishment  of  claims  against  France,  and  sixty 
millions  were  payable  in  cash  to  France.  When  it  was  concluded, 
Napoleon  said :  "Cette  accession  de  territoire,  aflfermit  pour  toujours  la 
puissance  des  Etats-Unis,  et  je  viens  de  donner  a  I'.^ngleterre  un  rival 
maritime,  qui  tot  ou  tard  abaissera  son  orgueil."* 

Between  the  conclusion  of  the  two  Treaties  of  1800  and  1803  a  corre- 
spondence arose  respecting  the  construction  of  the  former  Treaty.' 
Robeit  Livingston,  the  Minister  of  the  United  States,  complained  that 
the  Council  of  Prizes  (which  he  regarded  "as  a  political  board")' 
was  proceeding  in  violation  of  the  provisions  of  the  Tieaty.    On  the 


'  2  F.  R.  R,  SS2. 

2 8  Garden.  Traites  de  Pai.x,  64.  "I  renounce  Loui^^iana.  It  is  not  New  Or- 
leans only  that  I  wish  to  cede ;  it  is  all  the  colony,  reserving  nothing." 

»8  Garden,  Traites  de  Paix,  54.  •■2  F.  R.  F,  552. 

« 6  F.  R.  F,  162,  No.  460. 

"8  Garden,  Traites  de  Paix,  88.  "This  accession  of  territory  consolidates  for- 
ever the  power  of  the  United  States,  and  I  have  just  given  to  England  a  mari- 
time rival  who  sooner  or  later  will  humble  her  pride." 

'6  F.  R.  F,  154-168.  Mb.,  156. 


HISTORICAL  INTRODUCTION 


23 


26th  of  January,  1802,  he  was  "almost  hopeless"  as  to  the  claims.^ 
His  anxiety  communicated  itself  to  Madison.'  The  French  Court  next 
proposed  to  meet  the  French  obligation  in  paper  money,'  while  the 
appropriations  on  the  American  side  were  payable  in  coin.*  Livings- 
ton thought  Bonaparte  stood  in  the  way,  and  that,  should  anything 
happen  to  him,  France  would  "very  soon  be  able  to  look  all  demands 
in  the  face."'  Monroe  was  sent  out  to  aid  in  the  negotiations,  with 
special  powers  as  to  New  Orleans  and  the  Floridas.*  He  arrived  just 
in  time  to  find  the  First  Consul  bent  on  parting  with  Louisiana  and 
settling  with  the  United  States.  On  the  9th  of  March,  1803,  Talley- 
rand was  already  giving  signs  of  yielding.  He  expressed  surprise  at 
the  amount  of  the  American  claims  advanced  by  Livingston  (20,000,- 
000  francs),  but  avowed  his  purpose  of  paying  them,  whatever  they 
might  be,  and  asked  for  a  specified  statement.'  An  explanation,  which 
may  account  for  part  of  this,  may  be  found  in  two  dates.  The  peace 
of  Amiens  was  signed  the  25th  of  March,  1802 ;  the  declaration  of  the 
renewal  of  the  war  was  dated  the  18th  of  May,  1803. 

The  Convention  of  1800,  after  providing  for  the  restoration  of  cer- 
tain captured  property,  contained  a  provision  that  the  debts  contracted 
by  one  of  the  two  nations  with  individuals  of  the  other  should  be  paid,' 
but  that  this  clause  should  not  extend  to  indemnities  claimed  on  account 
of  captures  or  condemnations.  The  Convention  of  1803  stipulated 
that  these  debts,  with  interest  at  six  per  cent.,  should  not  exceed 
twenty  millions  of  francs. 

To  entitle  a  claimant  to  participate  in  this  fund,  it  was  necessar>- :  I. 
That  he  should  be  a  citizen  of  the  United  States  who  had  been,  and 
was  at  the  time  of  the  signing  of  the  Treaty,  a  creditor  of  France,  and 
who  had  no  established  house  of  commerce  in  France,  England,  or 
other  country  than  the  United  States,  in  partnership  with  foreigners ; 
2.  That,  if  the  claim  were  for  a  debt,  it  should  have  been  contracted 
for  supplies  before  the  30th  of  September,  1800,  and  should  have  been 
claimed  of  the  actual  Government  of  France  before  the  30th  of  April, 
1803 ;  3.  That,  if  for  prizes,  it  should  not  be  for  a  prize  whose  condem- 
nation had  been  or  should  be  confirmed ;  4.  That,  if  for  captures,  it 
should  not  be  a  case  in  which  the  council  of  prizes  had  ordered  restitu- 


» 6  F.  R.  F.,  1S6. 
»Ib.,  158. 
Mb.,  161. 
Mb..  162. 


Mb..  163. 
Mb.,  166. 
Mb.,  167- 
'An.  5. 


16£. 


? 


24 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


tion,  or  in  which  the  claimant  could  not  have  had  recourse  to  the  gov- 
ernment of  the  French  Republic,  or  where  the  captors  were  sufficient ; 
5.  That  it  should  either  be  for  supplies,  for  embargoes,  or  for  prizes 
made  at  sea,  in  which  the  appeal  had  been  properly  lodged  within  the 
time  mentioned  in  the  Convention  of  1800. 

The  distribution  of  this  money  gave  rise  to  some  sharp  correspond- 
ence.* The  claims  which  were  excluded  from  participation  in  the  dis- 
tribution have  become  known  as  the  "French  Spoliation  Claims."  They 
have  been  often  the  subject  of  Congressional  discussion  and  report* 

>  6  F.  R.  F.,  182-207. 

c  'S**,!"^,*!'"'"'^  5.f-  J?-  F"-  ^l-*'  352,  and  6  F.  R.  F.,  3-207,  558,  1121.  and 
^.  K.  lU,  M  bess.  41st  Cong.,  and  the  various  authorities  there  cited;  also, 
among  others,  an  elaborate  debate  in  the  Senate,  11  Debates,  2d  Sess.  23d  Cong. 
[See  the  Act  of  Ccngress  approved  January  20,  1885  (post  p.  92)  by  which  the 
claims  were  referred  for  ascertainment  as  to  facts  to  the  Court  of  Uaims.] 


PART  l.-STATE  PAPERS 

Extracu  from  Metsages  of  President  Adams,  and  Replies  of  the 
Senate  and  House 

SPECIAL  SESSION    MESSAGE' 

-"    .1  .  United  Staac     Mas  i6   noj 

Gentlernen  of  ihe  Senate  and  Gentlemen  of  the  House  of  R^prULa- 

the^Ho?sroT'p"'°"''"''"'"  '°  '^^  ""^"^^  °^  ^«  Senate  and  of 
IffV      Tl       Representatives  in  leaving  their  families  and  private 

^^grrntxr^'^"  ^^"^  '^^  ^^-^-^  ^^«  --^- °^ 

It  would  have  afforded  me  the  highest  satisfaction  to  have  been 

EuLS  'T"'"'"''  '°"  °"  '  '^^'°^^*'°"  °^  I^"  to  the  nations  of 
Europe  whose  an.mosuies  have  endangered  our  tranquillity;  but  we 
have  St.  1  abundant  cause  of  gratitude  to  the  Supreme  DLnst  oJ 
National  Blessings  for  general  health  and  promising  seasons   ^rdl 

tions  of  industry  through  extensive  territories,  for  civil  oolitica?  .nH 
rehg^ous  hberty.  While  other  states  are  des<;iated  Sh  fo^  Tr 
or  convulsed  with  intestine  divisions,  the  United  States  pre  StTJe 
peasmg  prospect  of  a  nation  governed  by  mild  and  equal  Taws  '„ 
erally  satisfied  with  the  possession  of  their  rights,  neitlr  envW^thJ 
advantages  nor  fearing  the  power  of  other  nations,  solidtous  only 

=n :?  S ::;:-::? -ntin.;  ^:?^-  -  -- 
r  dT "  T  r-' '''- ''-  -i-d  ;Tstrn;:^^^^^^^^^^ 

foundation-the  affections  of  the  people.  ^ 

It  is  with  extreme  regret  that  I  shall  be  obliged  to  turn  vour  thorahf- 
to  other  circumstances,  which  admonish  us  thft  som  of  S  f  Heft  es^ 
may  not  be  lasting.  But  if  the  tide  of  our  prosperity  is  fu  1  and  a  Xx 
cornmencng,  a  v-igilant  circumspection  becom^  us  that  ve  may  n^ee^ 
out  reverses  with  fortitude  and  extricate  ourselve    trLL 

_In_S.ving  .0  Coner.^,  mfama.fon  of  the  state  of  the  Union  ,ZIk- 
'  Kichardson,  Messages,  vol.  1,  p.  233. 


J 


m 


26  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

ommending  to  their  consideration  such  measures  as  appear  to  me  to  be 
necessary  or  expedient,  according  to  my  constitutional  duty,  the  causes 
and  the  objects  of  the  present  extraordinary  session  will  be  explamed. 
After  the  President  of  the  United  States  received  information  that 
the  French  Government  had  expressed  serious  discontents  at  some  pro- 
ceedings of  the  Government  of  these  States  said  to  aflfect  the  mterests 
of  France,  he  thought  it  expedient  to  send  to  that  country  a  new  min- 
ister, fully  instructed  to  enter  on  such  amicable  discussions  and  to  give 
such' candid  explanations  as  might  happily  remove  the  discontents  and 
suspicions  of  the  French  Government  and  vindicate  the  conduct  o. 
the  United  States.    For  this  purpose       selected  from  among  his  fellow- 
citizens  a  character  whose  integrity,  calents,  experience,  and  services 
had  placed  him  in  the  rank  of  the  most  esteemed  and  respected  in  the 
nation.    The  direct  object  of  his  mission  was  expressed  in  his  letter 
of  credence  to  the  French  Republic,  being  "to  maintain  that  good  un- 
derstanding which  from  the  commencement  of  the  alliance  had  sub- 
sisted between  the  two  nations,  and  to  efface  unfavorable  impressions, 
banish  suspicions,  and  restore  that  cordiality  which  was  at  once  the  evi- 
dence and  pledge  of  a  friendly  union."    And  his  instructions  were  to 
the  same  effect,  "faithfully  to  represent  the  disposition  of  the  Govern- 
ment and  people  of  the  United  States  (their  disposition  being  one),  to 
remove  jer'   isies  and  obviate  comp' lints  by  shewing  that  they  were 
groundless,  co  restore  that  mutual  confidence  which  had  been  so  un- 
fortunately and  injuriously  impaired,  and  to  explain  the  relative  in- 
terests of  both  countries  and  the  real  sentiments  of  his  own." 

A  minister  thus  specially  cur.ii..  ^  :o.ied  it  .va,-  expected  would  have 
proved  the  instrument  of  restoring  mutual  confidence  between  the  two 
Republics.  The  first  step  of  the  French  Government  corresponded  with 
that  expectation.  A  few  days  before  his  arrival  at  Paris  the  French 
minister  of  foreign  relations  informed  the  American  minister  then 
resident  at  Paris  of  the  formalities  to  be  observed  by  himself  in  taking 
leave,  and  by  his  successor  preparatory  to  his  reception.  These  for- 
malities they  observed,  and  on  the  9th  of  December  presented  officially 
10  the  minister  of  foreign  relations,  the  one  a  copy  of  his  letters  of  re- 
call, the  other  a  copy  of  his  letters  of  credence. 

These  were  laid  before  the  Executive  Directory.  Two  days  after- 
wards the  minister  of  foreign  relations  informed  the  recalled  Ameri- 
can minister  that  the  Executive  Directory  had  determined  not  to  re- 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  27 

ccive  another  minister  plenipotentiary  from  tiie  United  Sutes  until 
after  the  redress  of  grievances  demanded  of  the  American  Govern- 
ment, and  which  the  French  Republic  had  a  right  to  expect  from  it. 
The  Amei'can  minister  immediately  endeavored  to  ascertain  whether 
by  refusing  to  receive  him  it  was  intended  that  he  should  retire  from 
the  territorips  of  the  French  Republic,  and  verbal  answers  were  given 
that  such  was  the  intention  of  the  Directory.    For  his  own  justification 
he  desired  a  written  answer,  but  obtained  none  until  toward  the  last 
of  January,  when,  receiving  notice  in  writing  to  quit  the  territories  of 
the  Republic,  he  proceeded  to  Amsterdam,  where  he  proposed  to  wait 
for  instruction  from  this  Government.     During  his  residence  at  Paris 
cards  of  hospitality  were  refused  him,  and  he  was  threatened  with 
being  subjected  to  the  jurisdiction  of  the  minister  of  police;  but  with 
becoming  firmness  he  insisted  on  the  protection  of  the  law  of  nations 
due  to  him  as  the  known  minister  of  a  foreign  power.    You  will  derive 
further  information  from  his  dispatches,  which  will  be  laid  before  you. 
As  it  is  often  necessary  that  nations  should  treat  for  the  mutual  ad- 
vantage of  their  affairs,  and  especially  to  accommodate  and  terminate 
differences,  and  as  they  can  treat  only  by  ministers,  the  right  of  em- 
bassy is  well  known  and  established  by  the  law  and  usage  of  nations. 
The  refusal  on  the  part  of  France  to  receive  our  minister  is,  then,  the 
denial  of  a  right;  but  the  refusal  to  receive  him  until  we  have  acceded 
to  their  demands  without  discussion  and  withoui  investigation  is  to 
treat  us  neither  as  allies  nor  as  friends,  nor  as  a  sovereign  state. 

With  this  conduct  of  the  French  Government  it  will  be  proper  to 
take  into  view  the  public  audience  given  to  the  late  minister  of  the 
Urited  States  on  his  taHn:^  leave  of  the  Executive  Directory.  The 
speech  of  the  President  discloses  sentiments  more  alarming  than  the 
refusal  of  a  minister,  because  more  dangerous  to  our  independence  and 
union  and  at  the  same  time  studiously  marked  with  indignities  toward 
the  Government  of  the  United  States.  It  evinces  a  disposition  to  sepa- 
rate the  people  of  the  United  States  from  the  Government,  to  persuade 
them  that  they  have  different  affections,  principles,  and  interests  from 
those  of  their  fellow-citizens  whom  they  themselves  have  chosen  to 
manage  their  common  concerns,  and  thus  to  produce  divisions  fatal  to 
cur  peace.  Such  attempts  ought  to  be  repelled  with  a  decision  which 
shall  convince  France  and  the  world  that  we  are  not  a  degraded  peo- 
ple, humiliated  under  a  colonial  spirit  of  fear  and  sense  of  inferiority. 


nsfl 


-m 


28 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


fitted  to  be  the  miserable  instruments  of  foreign  influence,  and  re- 
gardless of  national  honor,  character,  and  interest. 

I  should  have  been  happy  to  have  thrown  a  veil  over  these  transac- 
tions if  it  had  been  possible  to  conceal  them;  but  they  have  passed  on 
the  great  theater  of  the  world,  in  the  face  of  all  Europe  and  America, 
and  with  such  circumstances  of  publicity  and  solemnity  that  they  can 
not  be  disguised  and  will  not  soon  be  forgotten.  They  have  inflicted 
a  wound  in  the  American  breast.  It  is  my  sincere  desire,  however, 
that  it  may  be  healed. 

It  is  my  sincere  desire,  and  in  this  I  presume  I  conour  with  you  and 
with  our  constituents,  to  preserve  peace  and  friendship  with  all  na- 
tions ;  and  believing  that  neither  the  honor  nor  the  interest  of  the  United 
States  absolutely  forbid  the  repetition  of  advances  for  securing  these 
desirable  objects  with  France,  I  shall  institute  a  fresh  attempt  at 
negotiation,  and  shall  not  fail  to  promote  and  accelerate  an  accommoda- 
tion on  terms  compatible  with  the  rights,  duties,  interests,  and  honor 
of  the  nation.  If  we  have  committed  errors,  and  these  can  be  demon- 
strated, we  shall  be  willing  to  correct  them;  if  we  have  done  i.-Juries, 
we  shall  be  willing  on  conviction  to  redress  them ;  and  equal  measures 
of  justice  we  have  a  right  to  expect  from  France  and  every  other 
nation. 

The  diplomatic  intercourse  between  the  Utiited  States  and  France 
being  at  present  suspended,  the  Government  has  no  means  of  obtain- 
ing official  information  from  that  country.  Nevertheless,  there 
is  reason  to  believe  that  the  Executive  Directory  passed  a  decree 
on  the  id  of  March  last  contravening  in  part  the  treaty  of  amity  and 
commerce  of  1778,  injurious  to  our  lawful  coivmerce  and  endangering 
the  lives  of  our  citizens.  .\  copy  of  this  decree  will  be  laid  before  you. 
While  we  are  endeavoring  to  adjust  a'l  our  differences  with  France 
by  amicable  negotiation,  the  jirogrtss  of  the  war  in  Europe,  the  depre- 
dations on  our  commerce,  the  pfr.sonal  injuries  to  our  citizens.  aii<l  the 
general  complexion  of  affairs  render  it  my  indispensat.le  duty  to  recom- 
mend to  your  consideration  etTectnal  measures  of  defense. 

The  commerce  of  the  United  States  has  become  an  interesting;  object 
of  attention,  whether  we  consider  it  in  relation  to  the  wealth  and 
finances  or  the  strength  and  resources  .if  the  nation.  With  a  seacoast 
of  near  2.000  miles  in  extent,  oix-ning  a  wide  fieUl  for  fisheries,  navi- 
gation, and  commerce,  a  great  portion  ot  our  citizens  naturally  apply 


i 


3 

I 


1 

w 


I 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  29 

their  industry  and  enterprise  to  these  objects.  Any  serious  and  perma- 
nent injury  to  commerce  would  not  fail  to  produce  the  most  embar- 
rassing disorders.  To  prevent  it  from  being  undermined  and  destroyefl 
It  is  essential  that  it  receive  an  adequate  protection. 

The  naval  establishment  must  occur  to  every  man  who  considers  the 
;..j:ir;rs  conmitted  on  our  commerce,  the  insults  offered  to  our  citizens. 
and  the  ;l2> :,  otion  of  vessels  by  which  these  abuses  have  been  prac- 
i-ed  As  t  .  sufferings  of  our  mercantile  and  seafaring  citizens  can 
not  be  ascr;  *d  to  the  omission  of  duties  demandable,  considering  the 
neut.-s.  -It  .ation  of  our  country,  they  are  to  be  attributed  to  the  hope 
of  impunity  arising  from  a  supposed  inability  on  our  part  to  afford 
protection.  To  resist  the  consequences  of  such  impressions  on  the 
mmds  of  foreign  nations  and  to  guard  against  the  degradation  and 
servility  which  they  must  finally  stamp  on  the  American  character  is  an 
important  duty  of  Government. 

A  naval  power,  next  to  the  militia,  is  the  natural  defense  of  the 
United  States.  The  experience  of  the  last  war  would  be  sufficient  to 
shew  that  a  moderate  naval  force,  such  as  would  be  easily  within  the 
present  abilities  of  the  Union,  would  have  been  sufficient  to  ha\e  baf- 
fled many  lor.nidable  transportations  of  troops  from  one  State  to 
another,  which  were  then  practiced.  Our  seacoasts.  from  their  great 
extent,  are  more  easily  annoyed  and  more  easily  defended  by  a  nava! 
force  than  any  other.  With  all  the  materials  our  country  abounds;  in 
skill  our  naval  architects  and  navigators  are  equal  to  any,  and  com- 
manders and  seamen  will  not  be  wanting. 

But  although  the  establishment  of  a  permanent  system  of  naval  de- 
fense appears  to  be  requisite,  I  am  sensible  it  can  not  be  formed  sn 
speedily  and  extensively  as  the  present  crisis  demands.  Hitherto  I 
Lave  thought  proper  to  prevent  the  sailing  of  armed  vessels  except  on 
voyages  to  the  East  Indies,  where  general  usage  and  the  danger  from 
pirates  appeared  to  render  the  permission  proper.  Yet  the  re.striction 
has  originated  solely  from  a  wish  to  prevent  collisions  with  the  powers 
at  A^ar,  contravening  the  act  of  Congress  of  hmc.  1794,  and  not  from 
any  doubt  entertained  by  me  of  the  policy  and  proprictv  of  permitting 
our  vessels  to  employ  means  of  defense  while  engaged  in  a  lawful 
foreign  commerce  It  remains  for  Congrc-^s  to  prescribe  such  regula- 
tionc  as  will  enaWe  our  seafaring  citizens  to  defend  fhemrelve.  against 
v,nl;,t,r,ns  of  the  I.iw  of  rations.  ,nd  .nf  the  <nnie  time  restrain  them 


30 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


from  committing  acts  of  hostility  against  the  powers  at  war.  In  addi- 
tion to  this  voluntary  provision  for  defense  by  individual  citizens,  it 
appears  to  me  necessary  to  equip  the  frigates,  ?nd  provide  other  vessels 
of  inferior  force,  to  take  under  convoy  such  merchant  vessels  as  shall 
remain  unarmed. 

The  greater  part  of  the  cruisers  whose  depredations  have  been  most 
injurious  have  been  built  and  some  of  them  partial;/  equipped  in  the 
United  States.  Although  an  effectual  remedy  may  be  attended  with 
difficulty,  yet  I  have  thought  it  my  duty  to  present  the  subject  gener- 
ally to  your  consideration.  If  a  mode  can  be  devised  by  the  wisdom 
of  Congress  to  prevent  the  resources  of  the  United  States  from  being 
converted  into  the  means  of  annoying  our  trade,  a  great  evil  will  be 
prevented.  With  the  same  view,  I  think  it  proper  to  mention  that  some 
of  our  citizens  resident  abroad  have  fitted  out  privateers,  and  others 
have  voluntarily  taken  the  command,  or  entered  on  board  of  them,  and 
committed  spoliations  on  the  commerce  of  the  United  States.  Such  un- 
natural and  iniquitous  practices  can  be  restrained  only  by  severe  pun- 
ishments. 

Rut  l)esides  a  protection  of  our  commerce  on  the  seas,  I  think  it 
highly  necessary  to  protect  it  at  home,  where  it  is  collected  in  our  most 
important  ports.  The  distance  of  the  United  States  from  Europe  and 
the  well-known  promptitude,  ardor,  and  courage  of  the  people  in  de- 
fense of  their  country  happily  diminish  the  probability  of  invasion. 
Neverthc!'  ss,  to  guard  against  sudden  and  predatory  incursions  the 
situation  if  some  of  our  principal  seaports  demands  your  consideration. 
And  as  our  country  is  vulnerable  in  other  interests  besides  those  of  its 
commerce,  you  will  seriously  deliberate  whether  the  means  of  general 
defense  ought  not  to  be  increased  by  an  addition  to  the  regular  artillery 
and  cavalry,  and  by  arrangements  for  forming  a  provisional  army. 

With  the  same  view,  and  as  a  measure  which,  even  in  a  time  of 
universal  peace,  ought  not  to  be  neglected.  I  recommend  to  your  con- 
sideration a  revision  of  the  laws  for  organizing,  arming,  and  disciplin- 
ing the  militia,  to  render  that  natural  and  safe  defense  of  the  country 
efficacious. 

.Mthough  it  is  very  true  that  we  ought  not  to  involve  ourselves  in 
the  political  system  of  Europe,  but  to  keep  ourselves  always  distinct 
and  separate  from  it  if  we  can,  yet  to  effect  this  separation,  early, 
punctual,  nn(\  continual  information  of  the  current  chain  of  events  and 


. 


-J 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  31 

Of  the  poHtical  projects  in  contemplation  is  no  less  necessary  than  if 
we  were  d.rectly  con..rned  in  them.  It  is  necessary,  in  or--  to  "he 
d.scovery  of  the  efforts    .ade  to  draw  us  into  the  vJr  ex.  Z  season  to 

The  maT"'"";  ''""^'  ''^'"-    "°^^^^^  ^  ^^  -"-der  ou'Sves 
UnitTd  slT'  and  commercial  powers  of  the  world  will  consider  the 

b Turn         V     ^"'"^  ''  '°""'"«  ^  "^'8^1*  -  that  balance  of  pow.' 
m  Europe  which  never  can  be  forgotten  or  neglected.    It  would  no 
only  be  agamst  our  interest,  but  it  would  be  doing  wrong  tr  one  ha^ 
of  Europe,  at  least,  if  we  should  voluntarily  throw  ourselves  into    ith 
conl?,.      11'  "T"'  P°"'^  ^°^  '  "^''^"  'hat  studies  to  be  neutS    o 
con  ult  w>th  other  nations  engaged  in  the  same  studies  and  pursuits 

treaties  with  Prussia  and  Sweden,  one  of  which  is  expired  and  the 
other  near  expiring,  might  be  renewed.  ^ 


Address  of  the  Senate  to  JoUn  Adams,  President  of  the  United  States^ 

ff XunT:  ''''-'  "  '^"'  "°"-^  °^  ^—  -  'he  exiS  s'^;: 
While  we  regret  the  necessity  of  the  pres.   ,      eeting  of  the  Le^is 
lature,  we  wish  ,0  express  our  entire  approbation  of  your  condm   n 
convening  it  on  this  momentous  occasion 

in?l«r""''"'''""  ""^  °"'  "'''°"^'  ^^''h.  honor,  and  dignity  beine 
in  a  great  measure  constitutionally  deposit  a  with  rh«  p  I  ^ 
observe  with  singular  satisfaction  the  vXefil;''  !:"'"'=•  ^' 
.ude  exhibited  by  you  in  this  critic:,  :Se^Lu7p  I  IcTffaT^^^^^^ 
from  thence  derive  an  evidence  and  pledge  of  the  r.^tkuHl  ,'h  ?' 
of  your  Administration.    And  we  are  sen!ihlV,>  i  k     ^'^'"''^Sr^ly 

^portance  that  each  branch  oTt^^^:!!' PsL^ufJd:;?^^^^ 
gfage  and  system  of  conduct  which  shall  be  cool    iust   Ih  H     '"" 
s-onate.  but  firm,  explicit,  and  decided  ^      '  '^  '^"P''' 

'  Richardson.  Messasrs  vol.  1.  p.  2.^9. 


32 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


desirable  objects  by  amicable  negotiatir  th  the  French  Republic. 
This  method  of  adjusting  nationai  differ  is  not  only  the  most  mild, 

but  the  most  rational  and  humane,  and  Wiin  governments  disposed  to  be 
just  can  seldom  fail  of  success  when  fairly,  candidly,  and  sincerely 
used.  If  we  have  committed  errors  and  can  be  made  sensible  of  them, 
we  agree  with  you  in  opinion  that  we  ought  to  correct  them,  and  com- 
pensate the  injuries  which  may  have  been  consequent  thereon ;  and  we 
trust  the  French  Republic  will  be  actuated  by  the  same  just  and  benevo- 
lent principles  of  national  policy. 

We  do  therefore  most  sincerely  approve  of  your  determination  to 
promote  and  accelerate  an  accommodation  of  our  existing  differences 
with  that  Republic  by  negotiation,  on  terms  compatible  with  the  rights, 
duties,  interests,  and  honor  of  our  nation.  And  you  may  rest  assured 
of  our  most  cordial  cooperation  so  far  as  it  may  become  necessary  in 
this  pursuit. 

Peace  and  harmony  with  all  nations  is  our  sincere  wish ;  but  such 
being  the  lot  of  humanity  that  nations  will  not  always  reciprocate 
peaceable  dispositions,  it  is  our  firm  belief  that  effectual  measures  of 
defense  will  tend  to  inspire  that  national  self-respect  and  confidence 
at  home  which  is  the  unfailing  .«ource  of  respectability  abroad,  to  check 
aggression  and  prevent  war. 

While  we  are  endeavoring  to  adjust  our  differences  with  the  French 
Republic  by  amicable  negotiation,  the  progress  of  the  war  in  Europe, 
the  depredations  on  our  commerce,  the  personal  injuries  to  our  citizens, 
and  the  general  complexion  of  affairs  prove  to  us  your  vigilant  care  in 
recommending  to  our  attention  effectual  measures  of  defense. 

Those  which  you  recommend,  whether  they  relate  to  external  defense 
by  permitting  our  citizens  to  arm  for  the  purpose  of  repelling  aggres- 
sions on  their  commercial  rights,  and  by  providing  sea  convoys,  or  to 
internal  defense  by  increasing  the  establishments  of  artillery  and  cav- 
alry, by  forming  a  provisional  army,  by  revising  the  militia  laws,  and 
fortifying  more  completely  our  i">rts  and  harbors,  will  meet  our  con- 
sideration under  the  influence  of  the  same  just  regard  for  the  security, 
interest,  and  honor  of  our  country  which  dictated  your  recommendation. 

Practices  so  unnatural  and  iniquitous  as  those  you  state,  of  our  own 
citizens  converting  their  property  and  personal  exertions  into  the  means 
of  annoying  our  trade  and  injuring  their  fellow<itizens,  deserve  legal 
Mverity  commensurate  with  their  turpitude. 


''1 

-i 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  33 

Although  the  Senate  believe  that  the  prosperity  and  happiness  of  our 
country  does  not  depend  on  general  and  extensive  political  connec- 
tions with  European  nations,  yet  we  can  never  lose  sight  of  the  pro- 
priety as  well  as  necessity  of  enabling  the  Executive,  by  sufficient  and 
liberal  supplies,  to  maintain  and  even  extend  our  foreign  intercourse  as 
exigencies  may  require,  reposing  full  confidence  in  the  Executive  in 
whom  the  Constitution  has  placed  the  powers  of  negotiation. 

We  learn  with  sincere  concern  that  attempts  are  in  operation  to 
alienate  the  affections  of  ou.    fellow-citizens  from  their  Government 
Attempts  so  wicked,  wherever  they  exist,  can  not  fail  to  excite  our  ut- 
most abhorrence.     A  government  chosen  by  the  people  for  their  own 
safety  and  happiness,  and  calculated  to  secure  both,  can  not  lose  their 
affections  so  long  a.s  its  administration  pursues  the  principles  upon 
which  It  was  erected;  and  your  resolution  to  observe  a  conduct  just 
and  impartial  to  all  nations,  a  sacred  regard  to  our  national  engage- 
ments, and  not  to  impair  the  rights  of  our  Government,  contains  pHn- 
cip.es  vvhich  can  not  fail  to  secure  to  your  Administration  the  support 
of  the  National  Legislature  to  render  abortive  every  attempt  to  exdte 
dangerous  jealousies  among  us,  and  to  convince  the  world  that  our 
Government  and  your  administration  of  it  can  not  be  separated  from 
the  affectionate  support  of  every  good  citizen.    And  the  Senate  can  not 
suffer  the  present  occasion  to  pass  without  thus  publicly  and  solemnly 
expressing  their  attachment  to  the  Constitution  and  Government  of 
their  country;  and  as  they  hold  themselves  responsible  to  their  consti- 
tuents, their  consciences,  and  their  God.  it  is  their  determination  by  all 
their  exertions  to  repel  every  attempt  to  alienate  the  affections  of  the 
people  from  the  Government,  so  highly  injurious  to  the  honor,  safety 
and  independence  of  the  United  States.  ' 

We  are  happy,  since  our  sentiments  on  the  subject  are  in  perfect 
umson  with  yours,  in  this  public  manner  to  declare  that  we  believe 
the  conduct  of  the  C^vernment  has  been  just  and  impartial  to  foreign 
nations  and  that  those  internal  reg-laticns  which  have  been  estab- 
lished for  the  preservation  of  peace  are  in  their  nature  proper  and 
have  been  fairly  executed. 

And  we  are  equally  happy  in  possessing  an  entire  confidence  in  vour 
abilities  and  exertions  in  your  station  to  maintain  untarinshed  the 
honor,  preserve  the  peace,  and  support  the  in.Iepcndence  of  our  coun- 
try, to  acquire  and  establish  which,  in  connection  with  your  fellow- 


34 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


citizens,  has  been  the  virtuous  effort  of  a  principal  part  of  your  life. 

To  aid  you  in  these  arduous  and  honorable  exertions,  as  it  is  our 
duty  so  it  shall  be  our  faithful  endeavor ;  and  we  flatter  ourselves,  sir, 
that  the  proceedings  of  the  present  session  of  Congress  will  manifest 
to  the  world  that  although  the  United  States  love  peace,  they  will  be 
independent ;  that  they  are  sincere  in  their  declarations  to  be  just  to  the 
French  and  all  other  nations,  and  expect  the  same  in  return. 

If  a  sense  of  justice,  a  love  of  moderation  and  peace,  shall  influence 
their  councils,  which  we  sincerely  hope  we  shall  have  just  grounds  to 
expect,  peace  and  amity  between  the  United  States  and  all  nations  will 
be  preserved. 

But  if  we  are  so  unfortunate  as  to  experience  injuries  from  any  for- 
eign power,  and  the  ordinary  methods  by  which  differences  are  amica- 
bly adjusted  between  nations  shall  be  rejected,  the  determination  "not 
to  surrender  in  any  manner  the  rights  of  the  Government,"  being  so 
inseparably  connected  with  the  dignity,  interest,  and  independence  of 
our  country,  shall  by  us  be  steadily  and  inviolably  supported. 

Th:  Jefferson, 
Vice-President  of  the  United  States  and  President  of  the  Senate. 

May  23,  1797. 


Reply  of  t!.e  President^ 

Mr.  Vice-President  and  Gentlemen  of  the  Senate: 

It  would  be  an  affectation  in  me  to  dissemble  the  pleasure  I  feel  on 
receiving  this  kind  address. 

My  long  pxiierience  of  the  wisdom,  fortitude,  and  patriotism  of  the 
Senate  of  the  United  States  enhances  in  my  estimation  the  value  of 
those  obliging  expressions  of  your  approbation  of  my  conduct,  which 
are  a  generous  reward  for  tlu  past  and  an  affecting  encouragement  to 
constancy  and  perseverance  in  future. 

Our  sentiments  appear  to  be  so  entirely  in  unison  that  I  can  not  but 
believe  them  to  Ix'  the  rational  result  of  the  understandings  and  tiie 
natural  feelings  of  the  hea.  ts  of  Americans  in  general  on  contemplating 
the  present  state  of  the  nation. 

While  such  principles  and  affections  prevail  they  will  form  an  in- 
dissoluble bond  of  union  and  a  sure  pledge  that  our  country  has  no 


>  Richardson,  Mes.sages,  vol.  1.  p.  242. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  35 

essential  injury  to  apprehend  from  any  portentous  appearances  abroad. 
In  a  humble  reliance  on  Divine  Providence  we  may  rest  assured  that 
while  we  reiterate  with  sincerity  our  endeavors  to  accommodate  all 
our  differences  with  France,  the  independence  of  our  country  can  not 
be  diminished,  its  dignity  degraded,  or  its  glory  tarnished  by  any  nation 
or  combination  of  nations,  whether  friends  or  enemies. 

n,      ^A   ,,«^  J°HN  Adams. 

May  24.  1797. 


Address  of  the  House  of  Representatives  to  John  Adams.  President 
of  the  United  States^ 

Sir:  The  interesting  details  of  those  events  which  have  rendered 
the  convention  of  Congress  at  this  time  indispensable  (communicated 
m  your  speech  to  both  Houses)  has  excited  in  us  the  strongest  emo- 
tions. Whilst  we  regret  the  occasion,  we  can  not  omit  to  testify  our 
approbation  of  the  measure,  and  pledge  ourselves  that  no  considera- 
tions of  private  inconvenience  shall  prevent  on  our  part  a  faithful 
discharge  of  the  duties  to  which  we  are  called. 

We  have  constantly  hoped  that  the  nations  of  Europe,  whilst  deso- 
lated by  foreign  wars  or  convulsed  by  intestine  divisions,  would  have 
left  the  United  States  to  enjoy  that  peace  and  tranquillity  to  which 
the  impartial  conduct  of  our  Government  has  entitled  us,  and  it  is  now 
with  extreme  regret  we  find  the  measures  of  the  French  Republic  tend- 
ing to  endanger  a  situation  so  desirable  and  interesting  to  our  country. 
Upon  this  occasion  we  feel  it  our  duty  to  express  in  the  most  ex- 
plicit manner  the  sensations  which  the  present  crisis  has  excited,  and 
to  assure  you  of  our  zealous  cooperation  in  those  measures  which  may 
appear  necessary  for  our  security  or  peace. 

Although  it  is  the  -a  lest  wish  of  our  hearts  that  peace  may  be 
maintained  with  the  French  Republic  and  with  all  the  world  yet  we 
never  will  surrender  those  rights  which  belong  to  us  as  a  nation  •  and 
whilst  we  view  with  satisfaction  the  wisdom,  dignity,  and  moderation 
which  have  marked  the  measures  of  the  Supreme  Executive  of  our 
country  in  his  attempt  to  remove  by  candid  explanations  the  complaints 
and  jealousies  of  France,  we  feel  the  full  force  of  that  indignity  which 

>  Richardson,  Messages,  vol.  1,  p.  242. 


36 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


has  been  offered  our  country  in  the  rejection  of  its  minister.  No  at- 
tempts to  wound  our  rights  as  a  sovereign  State  will  escape  the  notice 
of  our  constituents.  They  will  be  felt  with  indignation  and  repelled 
with  that  decision  which  shall  convince  the  world  that  we  are  not  a 
degraded  people ;  that  we  can  never  submit  to  the  deman.  3  of  a  foreig-.i 
power  without  examination  and  without  discussion. 

Knowing  as  we  do  the  confidence  reposed  by  the  people  of  the  United 
States  in  their  Government,  we  can  not  hesitate  in  expressing  our 
indignation  at  any  sentiments  tending  to  derogate  from  that  confi- 
dence. Such  sentiments,  wherever  entertained,  serve  to  evince  an  im- 
perfect knowledge  of  the  opinions  of  our  constituents.  An  attempt  to 
separate  the  people  of  the  United  States  from  their  Government  is  an 
attempt  to  separate  them  from  themselves;  and  although  foreigners 
who  know  not  the  genius  of  our  country  may  have  conceived  the 
project,  and  foreign  emissaries  may  attempt  the  execution,  yet  the 
united  efforts  of  our  fellow-citizens  will  convince  the  world  of  its  im- 
practicability. 

Sensibly  as  we  feel  the  wound  which  has  been  inflicted  by  the  trans- 
actions disclosed  in  your  communications,  yet  we  think  with  you  that 
neither  the  honor  nor  the  interest  of  the  United  States  forbid  the  repe- 
tition of  advances  for  preserving  peace ;  we  therefore  receive  with  the 
utmost  satisfaction  your  information  that  a  fresh  attempt  at  negotiation 
will  be  instituted,  and  we  cherish  the  hope  that  a  mutual  spirit  of  con- 
ciliation, and  a  disposition  on  the  part  of  France  to  compensate  for  any 
injuries  which  may  have  been  committed  upon  our  neutral  rights,  and 
on  the  part  of  the  United  States  to  place  France  on  grounds  similar 
to  those  of  other  countries  in  their  relation  and  connection  with  us 
(if  any  inequalities  shall  be  found  to  exist),  will  produce  an  accommo- 
dation compatible  with  the  engagements,  rights,  duties,  and  honor  of 
the  United  States.  Fully,  however,  impressed  with  the  uncertainty  of 
the  result,  we  shall  prepare  to  meet  with  fortitude  any  unfavorable 
events  which  may  occur,  and  to  extricate  ourselves  from  their  conse- 
quences with  all  the  skill  we  possess  and  all  the  efforts  in  our  power. 
Believing  with  you  that  the  conduct  of  the  Government  has  been  just 
and  impartial  to  foreign  nations,  that  the  laws  for  the  preservation  of 
peace  have  been  proper,  and  that  they  have  been  fairly  executed,  the 
Representatives  of  the  people  do  not  hesitate  to  declare  that  they  will 
give  their  most  cordial  support  to  the  execution  of  principles  so  de- 
liberately and  uprightly  established. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  37 

The  many  interesting  subjects  which  you  have  recommended  to  our 
consideration,  and  which  are  so  strongly  enforced  by  this  momentous 
occasion,  will  receive  every  attention  which  their  importance  demands, 
and  we  trust  that,  by  the  decided  and  explicit  conduct  which  will 
govern  our  deliberations,  every  insinuation  will  be  repelled  which  is 
derogatory  to  the  honor  and  independence  of  our  country. 

Permit  us  in  offering  this  address  to  express  our  satisfaction  at  your 
promotion  to  the  first  office  in  the  Government  and  our  entire  confi- 
dence that  the  preeminent  talents  and  patriotism  which  have  placed 
you  in  this  distinguished  situation  will  enable  you  to  discharge  its 
various  duties  with  satisfaction  to  yourself  and  advantage  to  our  com- 
mon  country. 
June  2,  1797. 


^ 


Reply  of  the  President"^ 

Mr.  Speaker  and  Gentlemen  of  the  House  of  Representatives: 

I  receive  with  great  satisfaction  your  candid  approbation  of  the  con- 
vention of  Congress,  and  thank  you  for  your  assurances  that  the  inter- 
esting subjects  recommended  to  your  consideration  shall  receive  the 
attention  which  their  importance  demands,  and  that  your  cooperation 
may  be  expected  in  those  measures  which  may  appear  necessary  for 
our  security  or  peace. 

The  declarations  of  the  Representatives  of  this  nation  of  their  satis- 
faction at  my  promotion  to  the  first  office  in  this  Government  and  of 
their  confidence  in  my  sincere  endeavors  to  discharge  the  various  duties 
of  it  with  advantage  to  our  common  country  have  excited  my  most 
grateful  sensibility. 

I  pray  you,  gentlemen,  to  believe  and  to  communicate  such  assurance 
lo  our  constituents  that  no  event  which  I  can  foresee  to  be  attainable 
by  any  exertions  in  the  discharge  of  my  duties  can  afford  me  so  much 
cordial  satisfaction  as  to  conduct  a  negotiation  with  the  French  Re- 
public to  a  removal  of  prejudices,  a  correction  of  errors,  a  dissipation 
of  umbrages,  an  accommodation  of  all  differences,  and  a  restoration  of 
harmony  and  affection  to  the  mutual  satisfaction  of  both  nations.  And 
whenever  the  legitimate  organs  of  intercourse  shall  be  restored  and  the 
real  sentiments  of  the  two  Governments  can  be  candidly  communicated 
»  Richardson,  Messages,  voL  1,  p.  244. 


RP 


38 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


to  each  other,  although  strongly  impressed  with  the  necessity  of  col- 
lecting ourselves  into  a  manly  posture  of  defense,  I  nevertheless  en- 
tertain an  encouraging  confidence  that  a  mutual  spirit  of  conciliation,  a 
disposition  to  compensate  injuries  and  accommodate  each  other  in  all 
our  relations  and  connections,  will  produce  an  agreement  to  a  treaty 
consistent  with  the  engagements,  rights,  duties,  and  honor  of  both 
nations. 

John  Adams. 
June  3,  1797. 


FIRST   ANNUAL   ADDRESS^ 

United  States,  November  22,  ij^j. 
Gentleman  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives: 

Although  I  can  not  yet  congratulate  you  on  the  reestablishment  of 
peace  in  Europe  and  the  restoration  of  security  to  the  persons  and  prop- 
erties of  our  citizens  from  injustice  and  violence  at  sea,  we  have, 
nevertheless,  abundant  cause  of  gratitude  to  the  source  of  benevolence 
and  influence  for  interior  tranquillity  and  personal  security,  for  propi- 
tious seasons,  prosperous  agriculture,  productive  fisheries,  and  general 
iruprovements,  and,  above  all,  for  a  rational  spirit  of  civil  and  religious 
liberty  and  a  calm  but  steady  determination  to  support  our  sovereignty, 
as  well  as  our  moral  and  our  religious  principles,  against  all  open  and 
secret  attacks. 

Our  envoys  extraordinary  to  the  French  Republic  embarked — one 
in  July,  the  other  early  in  August — to  join  their  colleague  in  Holland. 
I  have  received  intelligence  of  the  arrival  of  both  of  them  in  Holland, 
from  whence  they  all  proceeded  on  their  journeys  to  Paris  within  a  few 
days  of  the  19th  of  September.  Whatever  may  be  the  result  of  this 
mission,  I  trust  that  nothing  will  have  been  omitted  on  my  part  to 
conduct  the  negotiation  to  a  successful  conclusion,  on  such  equitable 
terms  as  may  be  compatible  with  the  safety,  honor,  and  interest  of  the 
United  States.  Nothing,  in  the  meantime,  will  contribute  so  much  to 
the  preservation  of  peace  and  the  attainment  of  justice  as  a  manifesta- 
tion of  that  energy  and  unanimity  of  which  on  many  former  occasions 
the  people  of  the  United  States  have  given  such  memorable  proofs. 


1  Richardson,  Messages,  vol.  1,  p.  2S0. 


u 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS 


39 


i 


and  the  exertion  of  those  resources  for  national  defense  which  a  benefi- 
cent Providence  has  kindly  placed  within  their  power. 

It  may  be  confidently  asserted  that  nothing  has  occuired  since  the 
adjournment  of  Congress  which  renders  inexpedient  those  precaution- 
ary measures  recommended  by  me  to  the  consideration  of  the  two 
Houses  at  the  opening  of  your  late  extraordinary  session.  If  that  sys- 
tem was  then  prudent,  it  is  more  so  now,  as  increasing  depredations 
.strengthen  the  reasons  for  its  adoption. 

Indeed,  whatever  may  be  the  issue  of  the  negotiation  with  France, 
and  whether  the  war  in  Europe  is  or  is  not  to  continue,  I  hold  it  most 
certain  that  permanent  tranquillity  and  order  will  not  soon  be  ob- 
tained. The  state  of  society  has  so  long  been  disturbed,  the  sense  of 
moral  and  religious  obligations  so  much  weakened,  public  faith  and 
national  honor  have  been  so  impaired,  respect  to  treaties  has  been  so 
diminished,  and  the  law  of  nations  has  lost  so  much  of  its  force,  while 
pride,  ambition,  avarice,  anc'  violence  have  been  so  long  unrestrained, 
there  remains  no  reasonable  ground  on  which  to  raise  an  expectation 
that  a  commerce  without  protection  or  defense  will  not  be  plundered. 
The  commerce  of  the  United  States  is  essential,  if  not  to  their  exist- 
ence, at  least  to  their  comfort,  their  growth,  prosperity,  and  happiness. 
The  genius,  character,  and  habits  of  the  people  are  highly  commercial. 
Their  cities  have  been  formed  and  exist  upon  commerce.  Our  agricul- 
ture, fisheries,  arts,  and  manufactures  are  connected  with  and  depend 
upon  it.  In  short,  commerce  has  made  this  country  what  it  is.  and  it 
can  not  be  destroyed  or  neglected  without  involving  the  people  in 
poverty  and  distress.  Great  numbers  are  directly  and  solely  sup- 
ported by  navigation.  The  faith  of  society  is  pledged  for  the  preserva- 
tion of  the  rights  of  commercial  and  seafaring  no  less  than  of  the  other 
citizens.  Under  this  view  of  ou'  affairs.  I  should  hold  myself  guilty 
of  a  neglect  of  duty  if  I  forbore  to  recommend  that  we  should  make 
every  exertion  to  protect  our  commerce  and  to  place  our  country  in  a 
suitable  posture  of  defense  as  the  only  sure  means  of  preserving  both. 


Address  of  the  Senate  to  John  Adams,  President  of  the  United  States'^ 
The  President  of  the  United  States: 

It  would  have  given  us  much  pleasure  to  have  received  your  con- 

'  Richardson,  Messages,  vol.  1,  p.  254. 


40 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


gratulations  on  the  reestablishmeut  of  peace  in  Europe  and  the  restora- 
tion of  security  to  the  persons  and  property  of  our  citizens  from  in- 
justice and  violence  at  sea ;  but  though  these  events,  so  desirable  to  our 
country  and  the  world,  have  not  taken  place,  yet  we  have  abundant 
cause  of  gratitude  to  the  Great  Disposer  of  Human  Events  for  interior 
tranquillity  and  personal  security,  for  propitious  seasons,  prosperous 
agriculture,  productive  fisheries,  and  general  improvement,  and,  abov.- 
all,  for  a  rational  spirit  of  civil  and  religious  liberty  and  a  calm  but 
steady  determination  to  support  our  sovereignty  against  all  open  and 
secret  attacks. 

We  learn  with  satisfaction  that  our  envoys  extraordinary  to  the 
French  Republic  had  safely  arrived  in  Europe  and  were  proceeding  to 
the  scene  of  negotiation,  and  whatever  may  be  the  result  of  the  mis- 
sion, we  are  perfectly  satisfied  that  nothing  on  your  part  has  been 
omitted  which  could  in  any  way  conduce  to  a  successful  conclusion  of 
the  negotiation  upon  terms  compatible  with  the  safety,  honor,  and  in- 
terest of  the  United  States;  and  we  are  fully  convinced  that  in  the 
meantime  a  manifestation  of  that  unanimity  and  energy  of  which  the 
people  of  the  United  States  have  given  such  memorable  proofs  and  a 
proper  exertion  of  those  resources  of  national  defense  which  we  pos- 
sess will  essentially  contribute  to  the  preservation  of  peace  and  the 
attainment  of  justice. 

We  think,  sir,  with  you  that  the  commerce  of  the  United  States  is 
essential  to  the  growth,  comfort,  and  prosperity  of  our  country,  and 
that  the  faith  of  .ociety  is  pledged  for  the  preservation  of  the  rights 
of  commercial  and  seafaring  no  less  than  of  other  citizens.  And  even 
if  our  negotiation  with  France  should  terminate  favorably  and  the 
war  in  Europe  cease,  yet  the  state  of  society  which  unhappily  prevails 
in  so  great  a  portion  of  the  world  and  the  experience  of  past  times 
under  better  circumstances  unite  in  warning  us  that  a  commerce  so 
extensive  and  which  holds  out  so  many  temptations  to  lawless  plun- 
derers can  never  be  safe  without  protection;  and  we  hold  ourselves 
obliged  by  every  tic  of  duty  which  binds  us  to  our  ronstituents  to  pr-.- 
mote  and  concur  in  such  measures  of  marine  defense  as  may  convinc- 
our  merchants  and  seamen  that  their  rights  are  not  sacrificed  nor  thes- 
injuries  forgfotten. 
Nov.  27,  1797. 


''¥ 


5* 

^1 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  41 

Rep. J  of  the  President^ 

^     .  United  States,  November  ^8,  nor 

Gentletwn  of  the  Senate:  ' 

I  thank  you  for  this  address. 

When,  after  the  most  laborious  investigation  and  serious  reflection 
without  partial  considerations  or  personal  motives,  measures  have  been' 
adopted  or  recommended,  I  can  receive  no  higher  testimony  of  their 
rectitude  than  the  approbation  of  an  assembly  so  independent,  patriotic 
and  enlightened  as  the  Senate  of  the  United  States. 

Nothing  has  afforded  me  more  entire  satisfaction  than  the  coincidence 
of  your  judgment  with  mine  in  the  opinion  of  the  essential  importance 
of  our  commerce  and  the  absolute  necessity  of  a  maritime  defense 
What  is  It  that  has  drawn  to  Europe  the  superfluous  riches  of  the 
three  other  quarters  of  the  globe  but  a  marine?  What  is  it  that  has 
drained  the  wealth  of  Europe  itself  into  the  coffers  of  two  or  three  of 
Its  principal  commercial  powers  but  a  marine? 

The  worid  has  furnished  no  example  of  a  flourishing  commerce 
without  a  maritime  protection,  and  a  moderate  knowledge  of  man  and 
his  history  will  convince  anyone  that  no  such  prodigy  ever  can  arise 
A  mercantile  marine  and  a  military  marine  must  grow  up  together- 
one  can  not  long  exist  without  the  other. 

John  Adams. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 

the  United  States' 

In  lamenting  the  increase  of  the  injuries  offered  to  the  persons  and 
property  of  our  citizens  at  sea  we  gratefully  acknowledge  the  continu- 
ance of  interior  tranquillity  and  the  attendant  blessings  of  which  you 
remind  us  as  alleviations  of  these  fatal  effects  of  injustice  and  violence 

Whatever  may  be  the  result  of  the  mission  to  the  French  Republic 
your  early  and  uniform  attachment  to  the  interest  of  our  country  your 
important  services  in  the  struggle  for  its  independence,  and  your  un- 
ceasing exertions  for  its  welfare  afford  no  room  to  doubt  of  the  sin- 
centy  of  your  efforts  to  conduct  the  negotiation  to  a  successful  conclu- 
sionj)n  such  terms  as  may  be  compatible  with  the  safety,  honor,  and 

'  Richardson,  Messages,  vol.  1,  p.  2S6. 
■  Ibid.  p.  257. 


p. 


42  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

interest  of  the  United  States.  We  have  also  a  finn  reliance  upon  the 
energy  and  unanimity  of  the  people  of  these  States  in  the  assertion  of 
their  right^  and  on  their  determination  to  exert  upon  all  proper  oc- 
casions their  ample  resources  in  providing  for  the  national  defense. 

The  importance  of  commerce  and  its  beneficial  influence  upon  agri- 
culture, arts,  and  manufactures  have  been  verified  in  the  growth  and 
prosperity  of  our  cc  .ntry.  It  is  essentially  connected  with  the  other 
great  interests  of  the  .-ommunity;  they  must  flourish  and  decline  to- 
gether; and  while  the  extension  of  our  navigation  and  trade  naturally 
excites  the  jealousy  and  tempts  the  avarice  of  other  nations,  we  are 
firmly  persuaded  that  the  numerous  and  deserving  class  of  citizens 
engaged  in  these  pursuits  and  dependent  on  them  for  their  subsistence 
has  a  strong  and  indisputable  claim  to  our  support  and  protection. 

Nov.  28.  1797. 


Reply  of  the  President^ 

United  States,  November  zg,  1797. 
Gentlemen  of  the  House  of  Representatives: 

I  receive  this  address  from  the  House  of  Representatives  of  the 
United  States  with  peculiar  pleasure. 

Your  approbation  of  the  meeting  of  Congress  in  this  city  and  of 
those  othe.-  measures  of  the  Executive  authority  of  Government  com- 
municated in  my  address  to  both  Houses  at  the  opening  of  the  session 
afford  me  great  satisfaction,  as  the  strongest  desire  of  my  heart  is  to 
give  satisfaction  to  the  people  and  their  Representatives  by  a  faithful 
discharge  of  my  duty. 

The  confidence  you  express  in  the  sincerity  of  my  endeavors  and  in 
the  unanimity  of  the  people  does  me  much  honor  and  gives  me  great 

joy. 

I  leioice  in  that  harmony  which  appears  in  the  sentiments  of  all  the 
brandies  of  the  Government  on  the  importance  of  our  commerce  and 
our  obligations  to  defend  it.  as  well  as  in  all  the  other  subjects  recom- 
mended to  your  consideration,  and  sincerely  congratulate  you  and  our 
fellow-citizens  at  large  on  this  appearance,  so  auspicious  to  the  honor, 
interest,  and  happiness  of  the  nation. 

>  Richardson,  Messages,  vol.  1.  p,  258. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS 


43 


SECOND  ANNUAL  ADDRESS' 


United  States,  December  8,  1798. 
GetUlemen  of  the  Senate  and  Gentlemen  oj  the  House  of 
Representatives: 
The  course  of  the  transactions  in  re.^tion  to  the  United  States  and 
Frajice  wh.ch  have  come  to  my  knowledge  during  your  recess  will  be 
made  the  subject  of  a  future  communication.     That  communication 
w^l  confirm  the  ultimate  failure  o£  the  measures  which  have  been 
taken  by  the  Government  of  the  United  States  toward  an  amicable  ad- 
justment of  o.fferences  with  that  power.    You  will  at  the  same  time 
perceive  that  the  French  Government  appears  solicitous  to  impress  the 
opmion   hat  .t  is  averse  to  a  rupture  with  this  country,  and  that  it  has 

he'unheSl.TT'"  'r"'''  '''*"  *•"'"«  '"^  ^«^^'-  ^  '"•"*^'"  f^"' 
t  is  u„  ort        ".       ^he  purpose  of  restoring  a  good  understanding. 
It  IS  unfortunate  for  professions  of  this  kind  that  they  should  be  ex- 
pressed in  terms  which  may  countenance  the  inadmissible  pretension 
Vnl7S  /°  ^u""S^  '^'  qualifications  which  a  minister  from  the 
Un.ted  Sta  es  should  possess,  and  that  while  France  is  asserting  the 
existence  of  a  disposition  on  her  part  to  conciliate  with  sincerity  the 
differwices  which  have  arisen,  the  sincerity  of  a  like  disposition  on  the 
part  of  the  Un.ted  States,  of  which  so  many  demonstrative  proofs  have 
been  given,  should  even  be  indirectly  questioned.    It  is  also  worthy  of 
obsenation  that  the  decree  of  the  Directory  alleged  to  be  intended  to 
restrain  the  depredations  of  French  cruisers  on  our  commerce  has  not 
given,  and  can  not  give,  any  relief.    It  enjoins  them  to  conform  to  all 
the  laws  of  France  relative  to  cruising  and  prizes,  while  these  laws  are 
themselves  the  sources  of  the  depredations  of  which  we  have  so  long  so 
justly,  and  so  fruitlessly  complained. 

The  law  of  France  enacted  in  January  last,  which  subjects  to  capture 
ami  condemnation  neutral  vessels  and  their  cargoes  if  anv  portion  of 
the  latter  are  of  British  fabric  or  produce,  although  the  enf'ire  property 
belong  to  neutrals,  instead  of  being  rescinded  has  lately  received  a 
confirmation  by  the  failure  of  a  proposition  for  its  repeal.    While  this 
aw  which  IS  an  unequivocal  act  of  war  on  the  commerce  of  the  nations 
.t  attacks,  continues  in  force  those  nations  can  see  in  the  French  Gov- 
ernment only  a  power  regardless  of  their  essential  rights,  of  their  inde- 
pendence and  sovereignty;  and  if  they  possess  the  means  they  can 
_econc,le  nothing  with  their  interest  and  honor  but  a  firm  resistance. 
'  Richardson.  M»i3gr:,  vol.  3.  s.  271 


44 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


11 


Hitherto,  therefore,  nothing  is  discoverable  in  the  conduct  of  France 
which  ought  to  change  or  relax  our  measures  of  defense.  On  the  con- 
trary, to  extend  and  invigorate  them  is  our  true  policy.  We  have  no 
reason  to  regret  that  these  measures  have  been  thus  far  adc^ted  and 
pursued,  and  in  proportion  as  we  enlarge  our  view  of  the  portentous 
and  incalculable  situation  of  Europe  we  shall  discover  new  and  cogent 
motives  for  the  full  development  of  our  energies  and  resources. 

But  in  denonstrating  by  our  conduct  that  we  do  not  fear  war  in  the 
necessary  protection  of  our  rights  and  honor  we  shall  give  no  room  to 
infer  that  we  abandon  the  desire  of  peace.  An  efficient  preparation  for 
war  can  alone  insure  peace.  It  is  peace  that  we  have  uniformly  and 
pcrscveringly  cultivated,  and  harmony  between  us  and  France  may  be 
restored  at  her  option.  But  to  send  another  minister  without  more 
determinate  assurances  that  he  would  be  received  would  be  an  act  of 
humiliation  to  which  the  United  States  ought  not  to  submit.  It  must 
therefore  be  left  with  France  (if  she  is  indeed  desirous  of  accommoda- 
tion) to  take  the  requisite  steps.  The  United  States  will  steadily  ob- 
serve the  maxims  by  which  they  have  hither  been  governed.  They  will 
respect  the  sacred  rights  of  embassy ;  and  with  a  sincere  disposition  on 
the  part  of  France  to  desist  from  hostility,  to  make  reparation  for  the 
injuries  heretofore  inflicted  on  our  commerce,  and  to  do  justice  in 
future,  there  will  be  no  obstacle  to  the  restoration  of  a  friendly  inter- 
course. In  making  to  you  this  declaration  I  give  a  pledge  to  France 
and  the  world  that  the  Executive  authority  of  this  country  still  adheres 
to  the  humane  and  pacific  policy  which  has  invariably  governed  its  pro- 
ceedings, in  conformity  with  the  wishes  of  the  other  branches  of  the 
Government  and  of  the  people  of  the  United  States.  But  considering 
the  late  manifestations  of  her  policy  toward  foreign  nations,  I  deem  it  a 
duty  deliberately  and  solemnly  to  declare  my  opinion  that  whether  we 
negotiate  with  her  or  not,  vigorous  preparations  for  war  will  be  alike 
indispensable.  These  alone  will  give  to  us  an  equal  treaty  and  insure  it^ 
observance. 

Among  the  measures  of  preparation  which  appear  expedient,  I  take 
the  liberty  to  recall  your  attention  to  the  naval  establishment.  The 
beneficial  eflFects  of  the  small  naval  armament  provided  under  the  acts 
of  the  last  session  are  known  and  acknowledged.  Perhaps  no  country 
ever  exfiericnced  more  sudden  and  remarkable  advantages  from  any 
measure  of  policy  than  we  have  derived  from  the  arming  for  our  mari- 
time protection  and  defense.    We  ought  without  loss  of  time  to  lav  the 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  45 

foundation  for  an  increase  of  our  Navy  to  a  size  sufficient  to  guard  our 
coast  and  protect  our  trade.  Such  a  naval  force  as  it  is  doubtless  in 
the  power  of  the  United  States  to  create  and  maintain  would  also  af- 
ford to  them  the  best  means  of  general  defense  by  facilitating  the  safe 
transportation  of  troops  and  stores  to  every  part  of  our  extensive  coast. 
To  accomplish  this  important  object,  a  prudent  foresight  requires  that 
systematical  measures  be  adopted  for  procuring  at  all  times  the  requisite 
timber  and  other  supplies.  In  what  manner  this  shall  be  done  I  leave 
to  your  consideration. 


Address  of  the  Senate  to  John  Adams.  President  of  the  United  States' 
The  President  of  the  United  States: 

Although  we  have  sincerely  wished  that  an  adjustment  of  our  differ- 
ences with  the  Republic  of  France  might  be  effected  on  safe  and  honor- 
able terms,  yet  the  information  you  have  given  us  of  the  ultimate  fail- 
ure of  the  negotiation  has  not  surprised  us.     In  the  general  conduct 
of  that  Republic  we  have  seen      design  of  universal  influence  incom- 
patible with  the  self-government  and  destructive  of  the  independence 
of  other  States.    In  its  conduct  toward  these  United  States  we  have 
seen  a  plan  of  hostility  pursued  with  unremitted  constancy,  equally  dis- 
regarding the  obligations  of  treaties  and  the  rights  of  individuals.    We 
have  seen  two  embassies,  formed  for  the  purpose  of  mutual  explana- 
tions and  clothed  with  the  most  extensive  and  liberal  powers,  dismissed 
without  recognition  and  even  without  a  hearing.    The  Government  of 
France  has  not  only  refused  to  repeal  but  has  recently  enjoined  the 
observance  of  its  former  edict  respecting  merchandise  of  British  fabric 
or  produce  the  property  of  neutrals,  by  which  the  interruption  of  our 
lawful  commerce  and  the  spoliation  of  the  property  of  our  citizens  have 
gam  received  a  public  sanction.     These  facts  indicate  no  change  of 
system  or  disposition;  they  speak  a  more  intelligible  language  than 
professions  of  solicitude  to  avoid  a  rupture,  however  a .dently  made 
But  if,  after  the  repeated  proofs  we  have  given  of  a  sincere  desire 
for  peace,  these  professions  should  be  accompanied  by  insinuations  im- 
plicating the  integrity  with  which  it  has  been  pursued ;  if,  neglecting 
and  passing  by  the  constitutional  and  authorized  agents  of  the  Govern- 
ment, they  arc  made  through  the  medium  of  individuals  without  public 
>  Richardson,  Meisages,  vol.  1,  p.  275. 


I,' 


I. 


46 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


character  or  authority,  and,  above  all,  if  they  carry  with  them  a  claim 
to  prescribe  the  political  qualifications  of  the  minister  of  the  United 
States  to  be  employed  in  the  negotiation,  they  are  not  entitled  to  atten- 
tion or  consideration,  but  ought  to  be  regarded  as  designed  to  separate 
the  people  from  their  Government  and  to  bring  about  by  intrigue  that 
which  open  force  could  not  effect. 

We  are  of  opinion  with  you,  sir,  that  there  has  nothing  yet  been  dis- 
covered in  the  conduct  of  France  which  can  justify  a  relaxation  of  the 
means  of  defense  adopted  during  the  last  session  of  Congress,  the 
happy  result  of  which  is  so  strongly  and  generally  marked.  If  the 
force  by  sea  and  land  which  the  existing  laws  authorize  should  be 
judged  inadequate  to  the  public  defense,  we  will  perform  the  indis- 
pensable duty  of  bringing  forward  such  other  acts  as  will  effectually 
call  forth  the  resources  and  force  of  our  country. 

A  steady  adherence  to  this  wise  and  manly  policy,  a  proper  direction 
of  the  noble  spirit  of  patriotism  which  has  arisen  in  our  country,  and 
which  ought  to  be  cherished  and  invigorated  by  every  branch  of  the 
Government,  will  secure  our  liberty  and  independence  against  all  open 
and  secret  attacks. 

We  enter  on  the  business  of  the  present  session  with  an  anxious 
solicitude  'or  the  public  good,  and  shall  bestow  that  consideration  on 
the  severr.l  objects  pointed  out  in  your  communication  which  they  re- 
spectively merit. 

Your  long  and  important  services,  your  talents  and  fir  nness,  so 
often  displayed  in  the  most  trying  times  and  most  critical  situations, 
afford  a  sure  pledge  of  a  zealous  cooperation  in  every  measure  neces- 
sary to  secure  us  justice  and  respect. 

John  Laurance, 
President  of  the  Senati'  pro  tempore. 

Deof.mber  11,  1798. 


Reply  of  the  President^ 

December  I2,  1798. 
To  the  Senate  of  the  United  Stales: 

Gentlemen  :  I  thank  you  for  this  address,  so  conformable  to  the 
spirit  of  our  Constitution  and  the  established  character  of  the  Senate 
of  the  United  States  for  wisdom,  honor,  and  virtue. 


»  Richardson.  Message^,  v"!   t,  p,  Z77, 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  47 

I  have  seen  no  real  evidence  of  any  change  of  system  or  disposition 
in  the  French  Republic  toward  the  United  States.  Although  the  offi- 
cious interference  of  individuals  without  public  character  or  authority 
IS  not  entitled  to  any  credit,  yet  it  deserves  to  be  considered  whether 
that  temerity  and  impertinence  of  individuals  affecting  to  interfere  in 
public  affairs  between  France  and  the  United  States,  whether  by  their 
secret  correspondence  or  otherwise,  and  intended  to  impose  upon  the 
people  and  separate  them  from  their  Govermnent,  ought  not  to  be  in- 
quired into  and  corrected. 

I  thank  you.  gentlemen,  for  your  assurances  that  you  will  bestow 
that  consideration  on  the  several  objects  pointed  out  in  my  communi- 
cation which  they  respectively  merit. 

If  I  have  participated  in  that  understanding,  sincerity,  and  constancy 
which  have  been  displayed  by  my  fellow-citizens  and  countrymen  in 
the  most  trying  times  and  critical  situations,  and  fulfilled  my  duties  to 
them.  I  am  happy.  The  testimony  of  the  Senate  of  the  United  States 
m  my  favor  is  an  high  and  honorable  reward  which  receives,  as  it 
ments,  my  grateful  acknowledgments.  My  zealous  cooperation  in 
measures  necessary  to  secure  us  justice  and  consideration  may  be  al- 
ways  depended  on. 

John  Adams. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 

the  United  States^ 
John  Adams, 

President  of  the  United  States. 
Desirous  as  we  are  that  all  causes  of  hostility  may  be  removed  by 
the  amicable  adjustment  of  national  differences,  we  learn  with  satis- 
faction that  in  pursuance  of  our  treaties  with  Spain  and  with  Great 
Britain  advances  have  been  made  for  definitively  settling  the  contro- 
versies relative  to  the  southern  and  northeastern  limits  of  the  United 
States.  With  similar  sentiments  have  we  received  your  information 
that  the  proceedings  under  commissions  authorized  by  the  same  treatie, 
afford  to  a  respectable  portion  of  our  citizens  the  prospect  of  a  final 
decision  on  their  claims  for  maritime  injuries  committed  by  subjects  of 
those  powers. 


'  Richkrdson,  Meitagen,  vol.  1,  p,  277. 


i  ; 


I: 


4g  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

It  would  be  the  theme  of  mutual  felicitation  were  we  assured  of 
experiencing  similar  moderation  and  justice  from  the  French  Republic, 
between  which  and  the  United  States  differences  have  unhappily 
arisen ;  but  this  is  denied  us  by  the  ultimate  failure  of  the  measures 
which  have  been  taken  by  this  Government  toward  an  amicable  adjust- 
ment of  those  differences  and  by  the  various  inadmissible  pretensions 
on  the  part  of  that  nation. 

The  continuing  in  force  the  decree  of  January  last,  to  which  you 
have  more  particularly  pointed  our  attention,  ought  of  itself  to  be  con- 
sidered as  demonstrative  of  the  real  intentions  of  the  French  Govern- 
ment. That  decree  proclaims  a  predatory  warfare  against  the  un- 
questionable rights  of  neutral  commerce  which  with  our  means  of  de- 
fense our  interest  and  our  honor  command  us  to  repel.  It  therefore 
now  becomes  the  United  States  to  be  as  determined  in  resistance  as 
they  have  been  patient  in  suffering  and  condescending  in  negotiation. 
While  those  who  direct  the  affairs  of  France  persist  in  the  enforce- 
ment of  decrees  so  hostile  to  our  essential  rights,  their  conduct  forbids 
us  to  confide  in  any  of  their  professions  of  amity. 

As,  therefore,  the  conduct  of  France  hitherto  exhibits  nothing  which 
ought  to  change  or  relax  our  measures  of  defense,  the  policy  of  extend- 
ing and  invigorating  those  measures  demands  our  sedulous  attention. 
The  sudden  and  remarkable  advantages  which  this  country  has  experi- 
enced from  a  small  naval  armament  sufficiently  prove  the  utility  of  its 
establishment.  As  it  respects  the  guarding  of  our  coast,  the  protection 
of  our  trade,  and  the  facility  of  safely  transporting  the  means  of  terri- 
torial defense  to  every  part  of  our  maritime  frontier,  an  adequate  naval 
force  must  be  considered  as  an  important  object  of  national  policy. 
Nor  do  we  hesitate  to  adopt  the  opinion  that,  whether  negotiations  with 
France  are  resumed  or  not,  vigorous  preparations  for  war  will  be  alike 
indispensable. 

In  this  conjuncture  of  affairs,  while  with  you  we  recognize  our  abun- 
dant cause  of  gratitude  to  the  Supreme  Disposer  of  Events  for  the  or- 
dinary blessings  of  Providence,  we  regard  as  of  high  national  impor- 
tance the  manifestation  in  our  country  of  a  magnanimous  spirit  of  re- 
sistance to  foreign  domination.  This  spirit  merits  to  be  cherished  and 
invigorated  by  every  branch  of  Government  as  the  estimable  pledge  of 
national  prosperity  and  glory. 

Disdaining  a  reliance  on  foreign  protection,  wanting  no  foreign  guar- 
anty of  our  liberties,  resolving  to  maintain  our  national  independence 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS 


49 


against  every  attempt  to  despoil  us  of  this  inestimable  treasure,  we 
confide  under  Providence  in  the  patriotism  and  energies  of  the  people 
of  these  United  States  for  defeating  the  hostile  enterprises  of  any 
foreign  power. 

To  adopt  with  prudent  foresight  such  systematical  measures  as  may 
be  expedient  for  calling  forth  those  energies  wherever  the  national 
exigencies  may  require,  whether  on  the  ocean  or  on  our  own  territorj-, 
and  to  rconcile  with  the  proper  security  of  revenue  the  convenience 
of  mercantile  enterprise,  on  which  so  great  a  proportion  of  the  public 
resources  depends,  ai-  objects  of  moment  which  shall  be  duly  regarded 
in  the  course  of  c  ar  deliberations. 

Fully  as  we  acv  >rd  with  you  in  the  opinion  that  the  United  States 
ought  not  to  submit  to  the  humiliation  of  sending  another  minister  to 
France  without  previous  assurances  sufficiently  determinate  that  he  will 
be  duly  accredited,  we  have  heard  with  cordial  approbation  the  declara- 
tion of  your  purpose  steadily  to  observe  those  maxims  of  humane  and 
pacific  policy  by  which  the  United  States  have  hitherto  been  governed. 
While  it  is  left  with  France  to  take  the  requisite  steps  for  accommoda- 
tion, it  is  worthy  the  Chief  Magistrate  of  a  free  people  to  make  known 
to  the  world  that  justice  on  the  part  of  France  will  annihilate  every 
obstacle  to  the  restoration  of  a  friendly  intercourse,  and  that  the  Execu- 
tive authority  of  this  country  will  respect  the  sacred  rights  of  embassy. 
At  the  same  time,  the  wisdom  and  decision  which  have  characterized 
your  past  Administration  assure  us  that  no  illusory  professbns  will 
seduce  you  into  any  abandonment  of  the  rights  which  belong  to  the 
United  States  as  a  free  and  independent  nation. 

December  13,  1798. 


Reply  of  the  President^ 

December  14,  1798. 
To  the  House  of  Representatives  of  the  United  States  of  America. 

Gentl£MEN  :  My  sincere  acknowledgments  are  due  to  the  House  of 
Representatives  of  the  United  States  for  this  excellent  address  so  con- 
sonant to  the  character  of  representatives  of  a  great  and  free  people. 
The  judgment  and  feelings  of  a  nation,  I  believe,  were  never  more 
truly  expressed  by  their  representatives  than  those  of  our  constituents 

*  Richardson,  MesMget,  voL  1,  p.  280. 


I 


:%  ■ 


SO 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


by  your  decided  declaration  that  with  our  means  of  defense  our  interest 
and  honor  command  us  to  repel  a  predatory  warfare  against  the  un- 
questionable rights  of  neutral  commerce;  that  it  becomes  the  United 
States  to  be  as  determined  in  resistance  as  they  have  been  patient  in 
suffering  and  condescending  in  negotiation ;  that  while  those  who  direct 
the  affairs  of  France  persist  in  the  enforcement  of  decrees  so  hostile 
to  our  essential  rights  their  conduct  forbids  us  to  confide  in  any  of 
their  professions  of  amity ;  that  an  adequate  naval  force  must  be  con- 
sidered as  an  important  object  of  national  policy,  and  that,  whether 
negotiations  with  France  are  resumed  or  not,  vigorous  preparations 
for  war  will  be  alike  indispensable. 

The  gene-ous  disdain  you  so  coolly  and  deliberately  express  of  a  re- 
liance on  foreign  protection,  wanting  no  foreign  guaranty  of  our  liber- 
ties, resolving  to  maintain  our  national  independence  against  every  at- 
tempt to  despoil  us  of  this  inestimable  treasure,  will  meet  the  full 
approbation  of  every  sound  understanding  and  exulting  applauses  from 
the  heart  of  every  faithful  American. 

I  thank  you,  gentlemen,  for  your  candid  approbation  of  my  senti- 
ments on  the  subject  of  negotiation  and  for  the  declaration  of  your 
opinion  that  the  policy  of  extending  and  invigorating  our  measures 
of  defense  and  the  adoption  with  prudent  foresight  of  such  systematical 
measures  as  may  be  expedient  for  calling  forth  the  energies  of  our 
country  wherever  the  national  exigencies  may  require,  whether  on  the 
ocean  or  on  our  own  territory,  will  demand  your  sedulous  attention. 

At  the  same  time,  I  take  the  liberty  to  assure  you  it  shall  be  my 
vigilant  endeavor  that  no  illusory  professions  shall  seduce  me  into 
any  abandonment  of  the  rights  which  belong  to  the  United  States  as  a 
free  and  independent  nation. 

John  Adams. 


THIRD  ANNUAL  AlffiRESS' 

United  States,  December  3,  ijgg. 
Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives: 
Persevering  in  the  pacific  and  humane  policy  which  had  been  in- 
variably professed  and  sincerely  pursued  by  the  I  xecutive  authority 
of  the  United  States,  when  indications  were  made  on  the  part  of  the 


i  Ricl'Ltrdson,  Messages,  vol.  I,  pp.  289-290. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  51 

French  Republic  of  a  disposition  to  accommodate  the  existing  differ- 
ences between  the  two  countries,  I  felt  it  to  be  my  duty  to  prepare  for 
meeting  their  advances  by  a  nomination  of  ministers  upon  certain  con- 
ditions which  the  honor  of  our  country  dictated,  and  which  its  modera- 
tion had  given  it  a  right  to  prescribe.  The  assurances  which  were 
required  of  the  French  Government  previous  to  the  departure  of  our 
envoys  have  been  given  through  their  minister  of  foreign  relations, 
and  I  have  directed  them  to  proceed  on  their  mission  to  Paris.  They 
have  full  power  to  conclude  a  treaty,  subject  to  the  constitutional  ad- 
vice and  consent  of  the  Senate.  The  characters  of  these  gentlemen  are 
sure  pledges  to  their  country  that  nothing  incompatible  with  its  honor 
or  interest,  lothing  inconsistent  with  our  obligations  of  good  faith  or 
friendship  to  any  other  nation,  will  be  stipulated. 

John  Adams. 


Address  of  the  Senate  to  John  Adams,  President  of  the  United  States^^ 

The  President  of  the  United  St.vtes  : 

When  we  reflect  upon  the  uncertainty  of  the  result  of  the  late  mis- 
sion to  France  and  upon  the  uncommon  nature,  extent,  and  aspect  of 
the  war  now  raging  in  Europe,  which  affects  materially  our  relations 
with  the  powers  at  war,  and  which  has  changed  the  condition  of  their 
colonies  in  our  neighborhood,  we  are  of  opinion  with  you  that  it  would 
be  neither  wise  nor  safe  to  relax  our  measures  of  defense  or  to  lessen 
any  of  our  preparations  to  repel  aggression. 

Samuel  Livermore, 
President  of  the  Senate  pro  tempore. 

December  9,  1799. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 
the  United  States* 

The  President  of  the  United  States: 

Highly  approving  as  we  do  the  pacific  and  humane  policy  which  has 
been  invariably  professed  and  sincerely  pursued  by  the  Executive  au- 

>  Richardson,  Messages,  vol.  1,  p.  292. 
»/W<*.  p.  293. 


-1. 
■(. 


In 


52  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

thority  oi  the  United  States,  a  policy  which  our  best  interests  en- 
ioined.  and  of  which  honor  has  permitted  the  observance,  we  consider 
as  the  most  unequivocal  proof  of  your  inflexible  preseverance  m  the 
same  well-chosen  system  your  preparation  to  meet  the  first  mdications 
on  the  part  of  the  French  Republic  of  a  disposition  to  accommodate 
the  existing  differences  between  the  two  countries  by  a  nommation  of 
ministers,  on  certain  conditions  which  the  honor  of  our  country  un- 
questionably dictated,  and  which  its  moderation  had  certamly  pven  it 
a  right  to  prescribe.    When  the  assurances  thus  required  of  the  French 
Government,  previous  to  the  departure  of  our  envoys,  had  been  given 
through  their  minister  of  foreign  relations,  the  direction  that  they 
should  proceed  on  their  mission  was  on  your  part  a  completion  of  the 
measure,  and  manifests  the  sincerity  with  which  it  was  commenced. 
We  offer  up  our  fervent  prayers  to  the  Supreme  Ruler  of  the  Universe 
for  the  success  of  their  embassy,  and  that  it  may  be  productive  of 
peace  and  happiness  to  our  common  country.    The  uniform  tenor  of 
vour  conduct  through  a  life  useful  to  your  fellow-citizens  and  honor- 
able to  yourself  gives  a  sure  pledge  of  the  sincerity  with  which  the 
avowed  objects  of  the  negotiation  will  be  pursued  on  your  part,  and  we 
earnestly  pray  that  similar  dispositions  may  be  displayed  on  the  part 
of  France.    The  differences  which  unfortunately  subsist  between  the 
two  nations  can  not  fail  in  that  event  to  be  happily  terminated.    To 
produce  this  end,  to  all  so  desirable,  firmness,  moderation,  and  union 
at  home  constitute,  we  are  persuaded,  the  surest  means.    The  char- 
acter of  the  gentlemen  you  have  deputed,  and  still  more  the  character 
of  the  Government  which  deputes  them,  are  safe  pledges  to  their 
country  that  nothing  incompatible  with  its  honor  or  interest,  nothing 
inconsistent  with  our  obligations  of  good  faith  or  friendship  to  any 
other  nation,  will  be  stipulated. 

We  learn  with  pleasrre  that  our  citizens,  with  their  property,  trading 
to  those  ports  of  St.  Domingo  with  which  commercial  intercourse  has 
been  renewed  have  been  duly  respected,  and  that  privateering  from 
those  ports  has  ceased. 
December  9,  1799. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS 


53 


Reply  of  the  Presidenf^ 

United  States,  December  lo,  1799 
Gentlemen  of  the  House  of  Representatives: 

As  long  as  we  maintain  with  harmony  and  affection  the  honor  of  our 
country  consistently  with  its  peace,  externally  and  internally,  while 
that  is  attainable,  or  in  war  when  that  becomes  necessary,  assert  its 
real  independence  and  sovereignty,  and  support  the  constitutional  ener- 
gies and  dignity  of  its  Government,  we  may  be  perfectly  sure,  under 
the  smiles  of  Divine  Providence,  that  we  shall  effectually  promote  and 
extend  our  national  interest  and  happiness. 

John  Adams. 


FOURTH  ANNUAL  ADDRESS* 

United  States,  November  22,  1800. 
Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives: 

The  envoys  extraordinary  and  ministers  plenipotentiary  from  the 
United  States  to  France  were  received  by  the  First  Consul  with  the 
respect  due  to  their  character,  and  three  persons  with  equal  powers 
were  appointed  to  treat  with  them.  Although  at  the  date  of  the  last 
official  intelligence  the  negotiation  had  not  terminated,  yet  it  is  to  be 
hoped  that  our  efforts  to  effect  an  accommodation  will  at  length  meet 
with  a  success  proportioned  to  the  sincerity  with  which  they  have  been 
so  often  repeated. 

While  our  best  endeavors  for  the  preservation  of  harmony  with  all 
nations  will  continue  to  be  used,  the  experience  of  the  world  and  our 
own  experience  admonish  us  of  the  insecurity  of  trusting  too  confi- 
dently to  their  success  We  can  not.  without  committting  a  dangerous 
imprudence,  abandon  those  measures  of  self-protection  which  are 
adapted  to  our  situation  and  to  which,  notwithstanding  our  pacific 
policy,  the  violence  and  injustice  of  others  may  again  compel  us  to 
resort.  While  our  vast  extent  of  seacoast,  the  commercial  and  agricul- 
tural habits  of  our  people,  the  great  capital  they  will  continue  to  trust 

'  Richardson,  Messages,  vol.  1,  p.  296. 
» Ibid.,  p.  305. 


'*..■■! 


54 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


on  the  ocean,  suggest  the  system  of  defense  which  will  be  most  bene- 
ficial to  ourselves,  our  disUnce  from  Europe  and  our  resources  for 
maritime  strength  will  enable  us  to  employ  it  with  effect.  Seasonable 
and  systematic  arrangements,  so  far  as  our  resources  will  justify,  for 
a  navy  adapted  to  defensive  war.  and  which  may  in  case  of  necessity 
be  quickly  brought  into  use,  seem  to  be  as  much  recommended  by  a 
wise  and  true  economy  as  by  a  just  regard  for  our  future  tranquillity, 
for  the  safety  of  our  shores,  and  for  the  protection  of  our  propcriy 
committed  to  the  ocean. 

The  present  Navy  of  the  United  States,  called  suddenly  mto  existence 
by  a  great  national  exigency,  has  raised  us  in  our  own  esteem,  and  by 
the  protection  afforded  to  our  commerce  has  effected  to  the  extent  of 
our  expectations  the  objects  for  which  it  was  created. 


Address  of  the  House  of  Representatives  to  John  Adams.  President  of 

the  United  States^ 

John  Adams, 

President  of  the  United  States: 
The  Constitution  of  the  United  States  having  confided  the  manage- 
ment of  our  foreign  negotiations  to  the  control  of  the  Executive  power, 
we  cheerfully  submit  to  its  decisions  on  this  important  subject ;  and  in 
respect  to  the  negotiations  now  pending  with  France  we  sincerly  hope 
that  the  final  result  may  prove  as  fortunate  to  our  country  as  the  most 
ardent  mind  can  wish. 

So  long  as  a  predatory  war  is  carried  on  against  our  commerce  we 
should  sacrifice  the  interests  and  disappoint  the  expectations  of  our 
constituents  should  we  for  a  moment  relax  that  system  of  maritime 
defense  which  has  resulted  in  such  beneficial  effects.  At  this  period 
it  is  confidently  believed  that  few  persons  can  be  found  within  the 
United  States  who  do  not  admit  that  a  navy,  well  organized,  must 
constitute  the  natural  and  efficient  defense  of  this  country  against  all 
foreign  hostility. 

November  26,  1800. 


1  Richardson,  Messages,  vol.  1,  i'.  310. 


:.l 


■^"! 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS 
Reply  of  the  President^ 


55 


Washington,  November  zj,  1800. 
Mr.  Speaker  and  Gentlemen  of  the  House  of  Representatives: 

With  you,  gentlemen,  I  sincerely  hope  that  the  final  result  of  the 
negotiations  now  pending  with  France  may  prove  as  fortunate  to  our 
country  as  they  have  been  commenced  with  sincerity  and  prosecuted 
with  deliberation  and  caution.  With  you  I  cordially  agree  that  so 
long  as  a  predatory  war  is  carried  on  against  our  commerce  we  should 
sacrifice  the  interests  and  disappoint  the  expectations  of  our  con- 
stituents should  we  for  a  moment  relax  that  system  of  maritime  de- 
fense which  has  resulted  in  such  beneficial  eflfects.  With  ;  ou  I  con- 
fidently believe  that  few  persons  can  be  found  within  the  Ur  ited  States 
who  do  not  admit  that  a  navy,  well  organized,  must  coi  stitute  the 
natural  and  efficient  defense  of  this  country  against  all  foreign  hostility. 

John  Adams. 

1  Richardion,  Messages,  vol.  1,  p.  312. 


:   .1 


Acts  of  Congress 

An  Act  more  ejfectually  to  protect  the  Commerce  and  Coasts  of  the 

United  States' 

Whereas  armed  vessels  sailing  under  authority  or  pretense  of  au- 
thority from  the  Republic  of  France,  have  committed  depredations  on 
the  commerce  of  the  United  States,  and  have  recently  captured  the 
vessels  and  property  of  citizens  thereof,  on  and  near  the  coasts,  in 
violation  of  the  law  of  nations,  and  treaties  between  the  United  States 
and  the  French  nation.    Therefore : 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled.  That  it  shall  be  law- 
ful for  the  President  of  the  United  States,  and  he  is  hereby  authorized 
to  instruct  and  direct  the  commanders  of  the  armed  vessels  belonging 
to  the  United  States  to  seize,  take  and  bring  into  any  port  of  the 
United  States,  to  be  proceeded  against  according  to  the  laws  of 
nations,  any  such  armed  vessel  which  shall  have  committed  or  which 
shall  be  found  hovering  on  the  coasts  of  the  United  States,  for  the 
purpose  of  committing  depredations  on  the  vessels  lielonging  to  citizens 
thereof ; — and  also  to  retake  any  ship  or  vessel,  of  any  citizen  or  citi- 
zens of  the  United  States  which  may  have  been  captured  by  any  such 
armed  vessel. 

Approved,  May  28,  1798. 


An  Act  to  suspend  the  r>  mmercial  intercourse  beticeen  the  United 
States  and  France,  and  the  dependencies  thereof^ 

Section  1.  Be  it  enacted  by  tite  Senate  anii  House  of  Represcnta- 
iives  of  the  United  States  of  America  in  Conj^ress  assembled,  That  no 
ship  or  vessel,  owned,  hired,  or  employed,  wholly  or  in  part,  by  any 
person  resident  within  the  United  States,  and  which  shall  depart 
therefrom  after  the  first  day  of  July  next,  shall  be  allowed  to  proceed 
directly,  or  from  any  intermediate  port  or  place,  to  any  port  or  place 
within  the  territory  of  the  French  Republic,  or  the  dependencies  there- 
of, or  to  any  place  in  the  West  Indies,  or  elsewhere  under  the  ac- 

>  Statutes  at  I^rgo,  vol.  I.  p.  561. 

>  Itfii..  p.  565. 


ACTS  OF  CONGRESS 


57 


knowledged  government  of  France,  or  shall  be  employed  in  any  traf- 
fic or  commerce  with,  or  for  any  person  resident  within  the  jurisdic- 
tion, or  under  the  authority  of  the  French  Republic.  And  if  any  ship 
or  vessel,  in  any  voyage  thereafter  commencing,  and  before  her  return 
within  the  United  States,  shall  be  voluntarily  carried,  or  suffered  to 
proceed  to  any  French  port  or  place  as  aforesaid,  or  shall  be  employed 
as  aforesaid,  contrary  to  the  intent  hereof,  every  such  ship  or  vessel 
together  with  her  cargo  shall  be  forfeited,  and  shall  accrue,  the  one 
half  to  the  use  of  the  United  States,  and  the  other  half  to  the  use  of  any 
person  or  persons,  citizens  of  the  United  States,  who  will  inform  and 
prosecute  for  the  same;  and  shall  be  liable  to  be  seized,  prosecuted  and 
condemned  in  any  circuit  or  district  court  of  the  United  SUtes  which 
shall  be  holden  within  or  for  the  district  where  the  seizure  shall  be 
made. 

Sec.  2.  And  be  it  further  enacted,  That  after  the  first  day  of  July 
next,  no  clearance  for  a  foreign  voyage  shall  be  granted  to  any  ship 
or  vessel,  owned,  hired,  or  employed,  wholly  or  in  part,  by  any  per- 
son resident  within  the  United  States,  until  a  bond  shall  be  given  to 
the  use  of  the  t^nited  States,  wherein  the  owner  or  employer,  if 
usually  resident  or  present,  where  the  clearance  shall  be  required,  and 
otherwise  his  agent  or  factor,  and  the  master  or  captain  of  such  ship 
or  vessel  for  the  intended  voyage,  shall  Iw  parties,  in  a  sum  equal  to 
the  value  c  the  ship  or  vessel,  and  her  cargo,  and  shall  find  sufficient 
surety  or  sureties,  to  the  amount  of  one  half  the  value  thereof,  with 
condition  that  the  same  shall  not.  during  her  intended  voyage  or 
More  her  return  within  the  United  States,  proceed,  or  be  carried, 
directly  or  indirectly,  to  any  port  or  place  within  the  territory  of  the 
Fn-tich  Republic,  or  the  dependencies  thereof,  or  any  place  in  the 
Wc'^t  Indies,  or  elsewhere,  under  the  acknowledged  government  of 
Fr.ince,  unless  by  distress  of  weather,  or  want  of  pmvisions,  or  hy 
actual  force  and  violence,  to  be  fully  proved  and  manifested  In- fore  the 
acquittance  of  such  bond ;  and  that  such  vessel  is  not,  and  simll  imt  be 
employed  during  her  intended  voyage,  or  before  her  return,  as  afor--- 
said,  in  any  traffic  or  commerce  with  or  for  any  person  resident  within 
the  territory  of  that  republic,  or  in  any  of  the  dependencies  thereof. 

Sec.  3.  And  be  U  further  emctai.  That  from  and  after  due  notice 
of  the  passing  of  this  act,  no  French  ship  or  vessel,  armed  or  unarmed. 
commi.s»ioned  by  or  for,  or  under  the  authorit\  <if  the  French  Republic! 
or  owned,  fitted,  hired  or  employed  by  any  person  resident  within  the 


m 


V 


58 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


i 


territory  of  that  republic,  or  any  of  the  dependencies  thereof,  or  sail- 
ing or  coming  therefrom,  excepting  any  vessel  to  which  the  President 
of  the  United  States  shall  grant  a  passport,  which  he  is  hereby  author- 
ized to  grant  in  all  cases  where  it  shall  be  requisite  for  the  purposes 
of  any  political  or  national  intercourse,  shall  be  allowed  an  entry,  or 
to  remain  within  the  territory  of  the  United  States,  unless  driven  there 
by  distress  of  weather,  or  in  want  of  provisions.    And  if  contrary  to 
the  intent  hereof  any  such  ship  or  vessel  shall  be  found  withm  the 
jurisdictional  limits  of  the  United  States,  not  being  liable  to  seizure 
for  any  other  cause,  the  company  having  charge  thereof  shall  be  re- 
quired to  depart  and  carry  away  the  same,  avoiding  all  unnecessary 
delay ;  and  if  they  shall,  notwithstanding,  remain,  it  shall  be  the  duty 
of  the  collector  of  the  district,  wherein,  or  nearest  to  which,  such  ship 
or  vessel  shall  be,  to  seize  and  detain  the  same,  at  the  expense  of  the 
United  States:  Provided,  that  ships  or  vessels  which  shall  be  bona  Me 
the  property  of,  or  hired,  or  employed  by  citizens  of  the  United  States, 
shall  be  excepted  from  this  prohibition  uniil  the  first  day  of  December 
next,  and  no  longer:  And  provided  that  in  the  case  of  vessels  hereby 
prohibited,  which  shaU  be  driven  by  distress  of  weather,  or  the  want 
of  provisions  into  any  port  or  place  of  the  United  States,  they  may 
be  suffered  to  remain  under  the  custody  of  the  collector  there,  or 
nearest  thereto,  until  suitable  repairs  or  supplies  can  be  obtamed,  and 
as  soon  as  may  be  thereafter  shall  be  required  and  suffered  to  departj 
but  no  part  of  the  lading  of  such  vessel  shall  be  taken  out  or  dispose 
of,  unless  by  the  special  permit  of  such  collector,  or  to  defray  the 
unavoidable  expense  of  such  repairs  or  supplies. 

Sf.c.  4.  And  be  it  further  enacted,  That  this  act  shall  continue  and 
be  in  force  until  the  end  of  the  next  session  of  Congress,  and  no 

longer.  .,  .    ,        . 

Sfx  5.  Provided,  and  be  it  further  enacted.  That  if,  before  the  next 
session  of  Congress,  the  government  of  France,  and  all  persons  acting 
by  or  under  their  authority,  shall  clearly  disavow,  and  shall  l>e  found 
to  refrain  from  the  aggressions,  depredations  and  hostilities  which 
have  been,  and  are  by  them  encouraged  and  maintained  against  the 
vessels  and  other  property  of  the  citizens  of  the  United  States,  and 
against  their  national  rights  and  sovereignty,  in  violation  of  the  faith 
of  treaties,  and  the  laws  of  nations,  and  shall  thereby  acknowledge 
the  just  clamis  of  the  United  States  to  be  considered  as  in  all  respects 
neutral,  and  unconnected  in  the  present  European  war.  if  the  same 


ACTS  OF  CONGRESS 


59 


shall  be  continued,  then  and  thereupon  it  shall  be  lawful  for  the 
President  of  the  United  States,  being  well  ascertained  of  the  premises, 
to  remit  and  discontinue  the  prohibitions  and  restraints  hereby  enacted 
and  declared ;  and  he  shall  be,  and  is  hereby  authorized  to  make  procla- 
mation thereof  accordingly:  Provided,  that  nothing  in  this  act  con- 
tained, shall  extend  to  any  ship  or  vessel  to  which  the  President  of  the 
United  States  shall  grant  a  permission  to  enter  or  clear;  which  per- 
mission he  is  hereby  authorized  to  grant  to  vessels  which  shall  be 
solely  employed  in  any  purpose  of  political  or  national  intercourse,  or 
to  aid  the  departure  of  any  French  persons,  with  their  goods  and 
effects,  who  shall  have  been  resident  within  the  United  States,  when 
he  may  think  it  requisite. 
Approved,  June  13,  1798. 


An  Act  to  authorise  the  defence  of  the  Merchant  Vessels  of  the  United 
States  against  French  depredations^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled.  That 
the  commander  and  crew  of  any  merchant  vessel  of  the  United  States, 
owned  wholly  by  a  citizen  or  citizens  thereof,  may  oppose  and  defend 
against  any  search,  restraint  or  seizure,  which  shall  be  attempted  upon 
such  vessel,  or  upon  any  other  vessel,  owned,  as  aforesaid,  by  the 
commander  or  crew  of  any  armed  vessel  sailing  under  French  colours, 
or  acting,  or  pretending  to  act,  by,  or  under  the  authority  of  the  French 
republic ;  and  may  repel  by  force  any  assault  or  hostility  which  shall 
be  made  or  committed,  on  the  part  of  such  French,  or  pretended  French 
vessel,  pursuing  such  attempt,  and  may  subdue  and  capture  the  same ; 
and  may  also  retake  any  vessel  owned,  as  aforesaid,  which  may  have 
been  captured  by  any  vessel  sailing  under  French  colours,  or  acting, 
or  pretending  to  act,  by  or  under  authority  from  the  French  republic. 

Sec.  2.  And  be  it  further  enacted,  That  whenever  the  commander 
and  crew  of  any  merchant  vessel  of  the  United  States  shall  subdue 
and  capture  any  French,  or  pretended  French  armed  vessel,  from 
which  an  assault  or  other  hostility  shall  be  first  made,  as  aforesaid, 
such  armed  vessel  with  her  tackle,  appurten9nces,  ammunition  and 
lading,  shall  accrue,  the  one  half  to  the  owner  or  owners  of  such 

'Statutes  at  Large,  vol  I,  p.  572. 


j-.lf .;  ■•! 

i    Ik    ' 


iiV 


60  THE  CONTROVERSY  WITH  FRANCE.  1797-1800 

merchant  vessel  of  the  United  States,  and  the  other  half  to  the  captors: 
And  being  brought  into  any  port  of  the  United  Stotcs,  shall  and  may 
be  adjudged  and  condemned  to  their  use,  after  due  process  and  tnal, 
in  any  court  of  the  United  States,  having  admiralty  jurisdjction,  and 
which  shall  be  holden  for  the  district  into  which  such  captured  vessel 
shall  be  brought;  and  the  same  court  shall  thereupon  order  a  sale 
and  distribution  thereof,  accordingly,  and  at  their  discretion;  savmg 
any  agreement,  which  shall  be  between  the  owner  or  owners,  and  the 
commandT  and  crew  of  such  merchant  vessel.  In  all  cases  of  recai>- 
ture  of  vessels  belonging  to  citizens  of  the  United  Stetes,  by  any  armed 
merchant  vessel,  aforesaid,  the  said  vessels,  with  their  cargoes,  shall 
be  adjudged  to  be  restored,  and  shall,  by  decree  of  such  courts  as  have 
jurisdiction,  in  the  premises,  be  restored  to  the  former  owner  or 
owners,  he  or  they  paying  for  salvage,  not  less  than  one  eighth,  nor 
more  than  one  half  of  the  true  value  of  the  said  vessels  and  cargoes, 
at  the  discretion  of  the  court ;  which  payments  shall  be  made  without 
any  deduction  whaf^oever. 

Sf«;  3.  And  be  it  further  enacted.  That  after  notice  of  this  act.  at 
the  several  custom-houses,  no  armed  merchant  vessel  of  the  United 
States  shall  receive  a  clearance  or  permit,  or  shall  be  suffered  to  depart 
therefrom,  unless  the  owner  or  owners,  and  thf  i.  aster  or  commander 
of  such  vessel  for  the  intended  voyage,  shall  give  bond,  to  the  use  of 
the  United  States,  in  a  sum  equal  to  double  the  value  of  such  vessel, 
with  condition,  that  such  vessel  shall  not  make  or  commit  any  depre- 
dation, outrage,  unlawful  assault,  or  unprovoked  violence  upon  the 
high  seas,  against  the  vessel  of  any  nation  in  amity  with  the  United 
States ;  and  that  the  guns,  arms  and  ammunition  of  such  vessel  shall 
be  returned  within  the  United  States,  or  otherwise  accounted  for.  and 
shall  not  1-e  sold  or  disposed  of  in  any  foreign  port  or  place ;  and  that 
such  owner  or  owners,  and  the  commander  and  crew  of  such  merchant 
vessel  shall,  in  all  things,  observe  and  perform  such  further  instruc- 
tions in  the  premises,  as  the  President  of  the  United  States  sliall 
est.ihlish  and  order,  for  the  better  government  of  the  amicl  merchant 
vessels  of  the  United  States. 

Sf..-.  4.  And  be  it  further  cvactcd.  That  the  President  of  the  United 
States  shall  be.  and  he  is  hereby  authorized  to  establish  .ind  order 
suitable  instructions  to.  and  for,  the  armed  merchant  vessels  of  the 
United  States,  for  the  better  governing  and  retraining  the  command- 
ers and  crews  who  shall  be  employed  therein,  and  to  prevent  any  out- 


ACTS  OF  CONGRESS 


61 


rage,  cruelty  or  injury  which  they  may  be  disposed  to  commit;  a  copy 
of  which  instructions  shall  be  delivered  by  the  collector  of  the  customs 
to  the  commander  of  such  vessel,  when  he  shall  give  bond,  as  afore- 
said. And  it  shall  be  the  duty  of  the  owner  or  owners,  and  com- 
mander and  crow,  for  the  time  being,  of  such  armed  merchant  vessel 
of  the  United  States,  at  each  return  to  any  port  of  the  United 
States,  to  make  report  to  the  collector  thereof  of  any  rencoun- 
ter which  shall  have  happened  with  any  foreign  vessel,  and  of 
the  sUte  of  the  company  and  crew  of  any  vessel  which  they  shall  have 
subdued  or  captured ;  and  the  persons  of  such  crew  or  company  shall 
be  delivered  to  the  care  of  such  collector,  who,  with  the  aid  of  the 
marshal  of  the  same  district,  or  the  nearest  military  officer  of  the 
United  States,  or  of  the  civil  or  military  officers  of  any  sUte,  shall 
take  suitable  care  for  the  restraint,  preservation  and  comfort  of  such 
persons,  at  the  expense  of  the  United  States,  until  the  pleasure  of  the 
President  of  the  United  States  shall  be  known  concerning  them. 

Sec.  S.  Atid  be  it  further  enacted.  That  this  act  shall  continue  and 
be  in  force  for  the  term  of  one  year,  and  until  the  end  of  the  next 
session  of  Congress  thereafter. 

Sec.  6.  Provided,  and  be  it  further  enacted.  That  whenever  the 
government  of  France,  and  all  persons  acting  by,  or  under  their  au- 
thority, shall  disavow,  and  shall  cause  the  commanders  and  crews  of 
all  armed  French  vessels  to  refrain  from  the  lawless  depredations  and 
outrages  hitherto  encouraged  and  authorized  by  that  government 
against  the  merchant  vessel [s]  of  the  United  States,  and  shall  cause 
the  laws  of  nations  to  be  observed  by  the  said  armed  French  vessels, 
the  President  of  the  United  States  shall  be,  and  he  is  hereby  author- 
ized to  instruct  the  commanders  and  crews  of  the  merchant  vessels  of 
the  United  States  to  submit  to  any  regular  search  by  the  commaii-lfrs 
or  crews  of  Frt.ich  vessels,  and  to  refrain  from  any  force  or  capture 
to  be  exercised  by  virtue  hereof. 

.\rpR0VED,  June  25,  1798. 


An  Act  in  addition  to  the  act  more  effectually  to  protect  the  Commerce 
and  Coasts  of  the  United  States' 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That  all 

>  Stttutes  at  Urge,  voL  I,  p.  574. 


I 

1-! 


62 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


■j 


such  armed  vessds  as  may  be  seized,  taken  and  brought  into  any  port 
of  the  United  States,  in  pursuance  of  the  act,  entitled  "An  act  more 
effectually  to  protect  the  commerce  and  coasts  of  the  United  States," 
with  the  apparel,  guns  and  appurtenances  of  such  vessels,  and  the 
goods  and  effects,  which  shall  be  found  on  board  the  same,  shall  be 
liable  to  forfeiture  and  condemnation,  and  may  be  libelled  and  pro- 
ceeded against  in  the  district  courts  of  the  United  States,  for  the 
district  into  which  the  same  may  beb  rought:  Provided,  that  such  for- 
feiture shall  not  extend  to  any  goods  or  effects,  the  property  of  any 
citizen  or  person  resident  within  the  United  States,  and  which  shall 
have  been  before  taken  by  the  crew  of  such  captured  vessel. 

Sec.  2.  And  be  it  further  enacted.  That  whenever  any  vessel  the 
property  of,  or  employed  by  any  citizen  of  the  United  States,  or  per- 
son resident  therein,  or  any  goods  or  effects  belonging  to  any  such 
citizen  or  resi  lent  shall  be  re-captured  by  any  public  armed  vessel  of 
the  United  Su>^s,  the  same  shall  be  restored  to  the  former  owner  or 
owners,  upon  due  proof,  he  or  they  paying  and  allowing,  as  and  for 
salvage  to  the  recaptors,  one  eighth  part  of  the  value  of  such  vessel, 
goods  and  effects,  free  of  all  deductions  and  expenses. 

Sec.  3.  And  be  it  further  enacted,  That  whenever  any  armed  vessel, 
captured  and  condemned,  as  aforesaid,  shall  have  been  of  superior  or 
ec|ual  force  to  the  public  armed  vessel  of  the  United  States  by  which 
such  capture  shall  have  been  made,  the  forfeiture  shall  be  and  accnie 
wholly  to  the  captors:  and  in  other  cases,  one  half  thereof  shall  be 
to  the  use  of  the  United  States,  and  the  residue  to  the  captors.  And 
all  salvage  which  shall  be  allowed  and  recovered  upon  any  vessel, 
goods  or  effects  re-captured,  and  to  be  restored,  as  aforesaid,  shall 
belong  wholly  to  the  officers  and  crew  of  the  public  armed  vessel  of 
the  United  States  by  which  such  re-capture  shall  be  made:  and  the 
court  before  whom  any  condemnation  shall  be  had,  as  aforesaid,  shall 
and  may  order  the  sale  of  the  vessel,  goods  and  effects  condemned, 
to  be  made  at  public  auction,  upon  due  notice  by  the  marshal  of  the 
district  in  which  the  same  shall  be :  and  all  expenses  of  condemnation 
and  sale,  being  deducted  from  the  proceeds,  the  part  thereof  which 
shall  accrue  to  the  United  States,  shall  be  paid  into  the  public  treasury, 
and  the  residue,  and  all  allowances  of  salvage,  as  aforesaid,  shall  be 
distributed  to.  and  among  the  officers  and  crews  concerned  therein, 
in  the  proportions  which  the  President  of  the  United  States  shall 
direct. 


ACTS  OF  CONGRESS 


63 


Sec.  4.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  to  cause  the  officers  and  crews  of  the 
vessels  so  captured  and  hostile  persons  found  on  board  any  vessel, 
which  shall  be  re-captured,  as  aforesaid,  to  be  confined  in  any  place 
of  safety  within  the  United  States,  in  such  manner  as  he  may  think 
the  public  interest  may  require,  and  all  marshals  and  other  officers 
of  the  United  States  are  hereby  required  to  execute  such  orders  as  the 
President  may  issue  for  the  said  purpose. 

Approved,  June  28,  1798. 


An  Act  respecting  Alien  Enemies' 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  Tliat 
whenever  there  shall  be  a  declared  war  between  the  United  States 
and  any  foreign  nation  or  government,  or  any  invasion  or  predaton.- 
incursion  shall  be  perpetrated,  attempted,  or  threatened  against  the 
territory  of  the  United  States,  by  any  foreign  nation  or  government, 
and  the  President  of  the  United  States  shall  make  public  proclamation 
of  the  event,  all  natives,  citizens,  denizens,  or  subjects  of  the  hostile 
nation  or  government,  being  males  of  the  age  of  fourteen  years  and 
upwards,  who  shall  be  within  the  United  States,  and  not  actually 
naturalized,  shall  be  liable  to  be  apprehended,  restrained,  secured  and 
removed,  as  alien  enemies.  And  the  President  of  the  United  States 
shall  be,  and  he  is  hereby  authorized,  in  any  event,  as  aforesaid,  by  his 
proclamation  thereof,  or  other  public  act,  to  direct  the  conduct  to  be 
observed,  on  the  part  of  the  United  States,  towards  the  aliens  who 
shall  become  liable,  as  aforesaid;  the  manner  and  degree  of  the 
restraint  to  which  chey  shall  be  subject,  and  in  wiiat  cases,  and  upon 
what  security  their  residence  shall  be  permitted,  and  to  provide  for  the 
removal  of  those,  who,  not  being  permitted  to  reside  within  the  United 
States,  shall  refuse  or  neglect  to  depart  therefrom ;  and  to  establish 
any  other  regulations  which  shall  be  found  necessary  in  the  premises 
and  for  the  public  safety:  Provided,  that  aliens  resident  within  the 
United  States,  who  shall  become  liable  as  enemies,  in  the  manner  afore- 
said, and  who  shall  not  be  chargeable  with  actual  hostility,  or  other 
crime  against  the  public  safety,  shall  be  allowed,  for  the  recovery,  dis- 

'  Statutes  at  Large,  vol.  I,  p.  577. 


64  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

posal,  and  removal  of  their  goods  and  effects,  and  for  their  departure, 
the  full  time  which  is,  or  shall  be  stipulated  by  any  treaty,  where  any 
shall  have  been  between  the  United  States,  and  the  hostile  nation  or 
government,  of  which  they  shall  be  natives,  citizens,  denizens  or  sub- 
jects: and  where  no  such  treaty  shall  have  existed,  the  President  of 
the  United  States  may  ascertain  and  declare  such  reasonable  time  as 
may  be  consistent  with  the  public  safety,  and  according  to  the  dictates 
of  humanity  and  national  hospitality. 

Sec.  2.  And  be  it  further  enacted,  That  after  any  proclamation  shall 
be  made  as  aforesaid,  it  shall  be  the  duty  of  the  several  courts  of  the 
United  States,  and  of  each  state,  having  criminail  jurisdiction,  and  of 
the  several  judges  and  justices  of  the  courts  of  the  United  States, 
and  they  shall  be,  and  are  hereby  respectively,  authorized  upon  com- 
plaint, against  any  alien  or  alien  enemies,  as  aforesaid,  who  shall  be 
resident  and  at  large  within  such  jurisdiction  or  district,  to  the  danger 
of  the  public  peace  or  safety,  and  contrary  to  the  tenor  or  intent  of 
such  proclamation,  or  other  regulations  which  the  President  of  the 
United  States  shall  and  may  establish  in  the  premises,  to  cause  such 
alien  or  aliens  to  be  duly  apprehended  and  convened  before  such  court, 
judge  or  justice;  and  after  a  full  examination  and  hearing  on  such 
complaint,  and  sufficient  cause  therefor  appearing,  shall  and  may 
order  such  alien  or  aliens  to  be  removed  out  of  the  territory  of  the 
United  States,  or  to  give  sureties  of  their  good  behaviour,  or  to  be 
otherwise  restrained,  conformably  to  the  proclamation  or  regulations 
which  shall  and  may  be  established  as  aforesaid,  and  may  imprison, 
or  otherwise  secure  such  alien  or  aliens,  until  the  order  which  shall 
and  may  be  made,  as  aforesaid,  shall  be  performed. 

Sec.  3.  And  be  it  further  etMcted,  That  it  shall  be  the  duty  of  the 
marshal  of  the  district  in  which  any  alien  enemy  shall  be  apprehended, 
who  by  the  President  of  the  United  States,  or  by  order  of  any  court, 
judge  or  justice,  as  aforesaid,  shall  be  required  to  depart,  and  to  be 
removed,  as  aforesaid,  to  provide  therefor,  and  to  execute  such  order, 
by  himself  or  his  deputy,  or  other  discreet  person  or  persons  to  be 
einployed  by  him,  by  causing  a  removal  of  such  alien  out  of  the  terri- 
tory of  the  United  States;  and  for  such  removal  the  marshal  shall 
have  the  warrant  of  the  President  of  the  United  States,  or  of  the 
court,  judge  or  justice  ordering  the  same,  as  the  case  may  be. 
Approved,  July  6.  1798. 


p--] 


■*  '1 


ACTS  OF  CONGRESS 


65 


An  Act  to  declare  the  treaties  heretofore  concluded  with  France,  no 
longer  obligatory  on  the  United  States^ 

Whereas  the  treaties  concluded  between  the  United  States  and 
France  have  been  repeatedly  violated  on  the  part  of  the  French  gov- 
ernment; and  the  just  claims  of  the  United  States  for  reparation  of  the 
injuries  so  committed  have  been  refused,  and  their  attempts  to  n^otiate 
an  amicable  adjustment  of  all  complaints  between  the  two  nations, 
have  been  repelled  with  indignity:  And  whereas,  under  authority  of 
the  French  government,  there  is  yet  pursued  against  the  United  States, 
a  system  of  predatory  violence,  infracting  the  said  treaties,  and  hostile 
to  the  rights  of  a  free  and  independent  nation : 

Be  it  enacted  by  the  Senate  cid  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  United 
States  are  of  right  freed  and  exonerated  from  the  stipulations  of  the 
treaties,  and  of  the  consular  convention,  heretofore  concluded  between 
the  United  States  and  France ;  and  that  the  same  shall  not  henceforth 
be  regarded  as  legally  obligatory  on  the  government  or  citizens  of  the 
United  States. 

Approved,  July  7,  1798. 


An  Act  further  to  protect  the  Commerce  of  the  United  States' 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That  the 
President  of  the  United  States  shall  be,  and  he  is  hereby  authorized 
to  instruct  the  commanders  of  the  public  armed  vessels  which  are,  or 
which  shall  b<?  employed  in  the  service  of  the  United  States,  to  subdue, 
seize  and  Uke  any  armed  French  vessel,  which  shall  be  found  within 
the  jurisdictional  limits  of  the  United  States,  or  elsewhere,  on  the  high 
seas,  and  such  captured  vessel,  with  her  apparel,  guns  and  appurte- 
nances, and  the  goods  or  effects  which  shall  be  found  on  board  the 
same,  being  French  property,  shall  be  brought  within  some  port  of  the 
United  States,  and  shall  be  duly  proceeded  against  and  condemned  as 
forfeited ;  and  shall  accrue  and  be  distributed,  as  by  law  is  or  shall  be 
provided  respecting  the  captures  which  shall  be  made  by  the  public 
armed  vessels  of  the  United  States. 

» Statutes  at  Large,  voL  I,  p.  Sra 
*Ibid.  p.  S7a 


66 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


H 


I 


Sec.  2.  And  be  it  further  enacted.  That  the  President  of  the  United 
States  shall  be,  and  he  is  hereby  authorized  to  grant  to  the  owners  of 
private  armed  ships  and  vessels  of  the  United  Sutes,  who  shall  make 
application  therefor,  special  commissions  in  the  form  which  he  shall 
direct,  and  under  the  seal  of  the  United  States;  and  such  private  ar  ,ed 
vessels,  when  duly  commissioned,  as  aforesaid,  shall  have  the  same 
license  and  authority  for  the  subduing,  seizing  and  capturing  any 
armed  French  vessel,  and  for  the  recapture  of  the  vessels,  goods  and 
effects  of  the  people  of  the  United  States,  as  the  public  armed  vessels 
of  the  I'nited  States  may  by  law  have ;  and  shall  be,  in  like  manner, 
subject  to  such  instructions  as  shall  be  ordered  by  the  President  of  the 
United  States,  for  the  regulation  of  their  conduct.  And  the  commis- 
sions which  shall  be  granted,  as  aforesaid,  shall  be  revocable  at  the 
pleasure  of  the  President  of  the  United  States. 

Sec.  3.  Provided,  and  be  it  further  enacted.  That  every  person  in- 
tending to  set  forth  and  employ  an  armed  vessel,  and  applying  for  a 
commission,  as  aforesaid,  shall  produce  in  writing  the  name,  and  a 
suitable  description  of  the  tonnage  and  force  of  the  vessel,  and  the 
name  and  place  of  residence  of  each  owner  concerned  therein,  the 
number  of  the  crew  and  the  name  of  the  commander,  and  the  two 
officers  next  in  rank,  appointed  for  such  vessel ;  which  writing  shall 
be  signed  by  the  person  or  persons  making  such  application,  and  filed 
with  the  Secretary  of  State,  or  shall  be  delivered  to  any  other  officer 
or  person  who  shall  be  employed  to  deliver  out  such  commissions, 
to  be  by  him  transmitted  to  the  Secretary  of  State. 

Sec.  4.  And  proiided,  and  he  it  further  enacted,  That  before  any 
commission,  as  aforesaid,  shall  be  issued,  the  owner  or  owners  of  the 
ship  or  vessel  for  which  the  same  shall  be  requested,  and  the  com- 
mander thereof,  for  the  time  being,  shall  give  bond  to  the  United 
States,  with  at  least  two  responsible  sureties,  not  interested  in  such 
vessel,  in  the  penal  sum  of  seven  thousand  dollars ;  or  if  such  vessel 
be  provided  with  more  than  one  hundred  and  fifty  men,  then  in  the 
penal  sum  of  fourteen  thousand  dollars ;  with  condition  that  the  own- 
ers, and  officers,  and  crews  who  shall  be  employed  on  board  of  such 
commirsioned  vessel,  shall  and  will  observe  the  treaties  and  laws  of 
the  United  States,  and  the  instnictions  which  shall  be  given  them  for 
the  regulation  of  their  conduct:  And  will  satisfy  all  damages  and 
injuries  which  shall  be  done  or  committed  contrary  to  the  tenor  thereof. 
by  such  vessel,  during  her  commission,  and  to  deliver  up  the  same 
when  revoked  by  the  President  of  the  United  States. 


ACTS  OF  CONGRESS 


67 


Sec.  5.  And  be  it  further  enacted,  That  all  armed  French  vessels, 
together  with  taeir  apparel,  guns  and  appurtenances,  and  any  goods 
or  effects  which  shall  be  found  on  board  the  same,  being  French 
property,  and  which  shall  be  captured  by  any  private  armed  vessel  or 
vessels  of  the  United  States,  duly  cc^mmissioned,  as  aforesaid,  shall  be 
forfeited,  and  shall  accrue  to  the  owners  thereof,  and  the  officers  and 
crews  by  whom  such  captures  shall  be  made ;  and  on  due  condemnation 
had,  shall  be  distributed  according  to  any  agreement  which  shall  be 
between  them ;  or  in  failure  of  such  agreement,  then  by  the  discretion 
of  the  court  before  whom  such  condemnation  shall  be. 

Sec.  6.  Ana  be  it  further  enacted.  That  all  vessels,  goods  and  effects, 
the  property  of  any  citizen  of  the  United  States,  or  person  resident 
therein,  which  shall  be  recaptured,  as  aforesaid,  shall  be  restored  to  the 
lawful  owners,  upon  payment  by  them,  respectively,  of  a  just  and 
reasonable  salvage,  to  be  determined  by  the  mutual  agreement  of  the 
parti-  '  concerned,  or  by  the  decree  of  any  court  of  the  United  States 
having  maritime  jurisdiction  according  to  the  nature  of  each  case: 
Proi'ided,  that  such  allowance  shall  not  be  less  than  one  eighth,  or 
exceeding  one  half  of  the  full  value  of  such  recapture,  without  any 
deduction.  And  such  salvage  shall  be  distributed  to  and  among  the 
owners,  officers  and  crews  of  the  private  armed  vessel  or  vessels 
entitled  thereto,  according  to  any  agreement  which  shall  be  between 
them ;  or  in  case  of  no  agreement,  then  by  the  decree  of  the  court  who 
shall  determine  upon  such  salvage. 

Sec.  7.  And  be  it  further  enacted.  That  before  breaking  bulk  of  any 
vessel  which  shall  be  captured,  as  aforesaid,  or  other  disposal  or  con- 
version thereof,  or  of  any  articles  which  shall  be  found  on  board 
the  same,  such  capture  shall  be  brought  into  some  port  of  the  United 
States,  and  shall  be  libelled  and  proceeded  against  before  the  district 
court  of  the  same  distr':t;  and  if  after  a  due  course  of  proceedings, 
such  capture  shall  be  decreed  as  forfeited  in  the  district  court,  or  in 
the  circuit  court  of  the  same  district,  in  the  case  of  any  appeal  duly 
allowed,  the  same  shall  be  delivered  to  the  owners  and  captors  con- 
cerned therein,  or  shall  be  publicly  sold  by  the  marshal  v  *  the  same 
court,  as  shall  be  finally  decreed  and  ordered  by  the  court.  And  the 
same  court,  who  shall  have  final  jurisdiction  of  any  libel  or  com- 
plaint of  any  capture,  as  aforesaid,  shall  and  may  decree  restitution, 
in  whole  or  in  part,  when  the  capture  and  restraitit  shall  have  been 
made  without  just  cause,  as  aforesaid;  and  if  ma  e  without  probable 


II 


^ 


i  I 


68 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


cause,  or  otherwise  unreasonably,  may  order  and  decree  damages  and 
costs  to  the  party  injured,  and  for  which  the  owners,  officers  and 
crews  of  the  private  armed  vessel  or  vessels  by  which  such  unjust 
capture  shall  have  been  made,  and  also  such  vessel  or  vessels  shall  be 
answerable  and  liable. 

Sec.  8.  And  be  it  further  enacted.  That  all  French  persons  and 
others,  who  shall  be  found  acting  on  board  any  French  armed  vessel, 
which  shall  be  captured,  or  on  board  of  any  vessel  of  the  United  States, 
which  shall  be  recaptured,  as  aforesaid,  shall  be  reported  to  the  col- 
lector of  the  port  in  which  they  shall  first  arrive,  and  shall  be  delivered 
to  the  custody  of  the  marshal,  or  of  some  civil  or  military  officer  of 
the  United  States,  or  of  any  state  in  or  near  such  port ;  who  shall  take 
charge  for  their  safe  keeping  and  support,  at  the  expense  of  the  United 
States. 

Approved,  July  9,  1798. 


An  Act  further  to  suspend  the  Commercial  Intercourse  between  the 
United  States  and  France,  and  the  dependencies  thereof 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That 
from  and  after  the  third  day  of  March  next,  no  ship  or  vessel  owned, 
hired  or  employed,  wholly,  or  in  part,  by  any  person  resident  within 
the  United  States,  and  which  shall  depart  thereform,  shall  be  allowed 
to  proceed  directly,  or  from  any  intermediate  port  or  place,  to  any  port 
or  place  within  the  territory  of  the  French  Republic,  or  the  dependen- 
cies thereof,  or  to  any  •  .ce  in  the  West  Indies,  or  elsewhere,  under 
the  acknowledged  government  of  France,  or  shall  be  employed  in  any 
traffic  or  commerce  with  or  for  any  person  resident  within  the  juris- 
diction, or  under  the  authority  of  the  French  Republic.  And  if  any 
ship  or  vessel,  in  any  voyage  thereafter  commencing,  and  before  her 
return  within  the  United  States,  shall  be  voluntarily  carried  or  suf- 
fered to  proceed  to  any  French  port  or  place,  as  aforesaid,  or  shall  be 
employed,  as  aforesaid,  contrary  to  the  intent  hereof,  every  such  ship 
or  vessel,  together  with  her  cargo,  shall  be  forfeited ;  and  shall  accrue, 
the  one  half  to  the  use  of  the  United  States,  and  the  other  half  to  the 


»  Statutes  at  Large,  vol.  I,  p.  613. 


ACTS  OF  CONGRESS 


69 


use  of  any  person  or  persons,  citizens  of  the  United  States,  who  will 
inform  and  prosecute  for  the  same;  and  shall  be  liable  to  be  seized, 
and  may  be  prosecuted  and  condemned,  and  in  any  circuit  or  district 
court  of  the  United  States,  which  shall  be  holden  within  or  for  the 
district  where  the  seizure  shall  be  made. 

Sec.  2.  And  be  it  further  enacted.  That  from  and  after  the  pass- 
ing of  this  act,  no  clearance  for  a  foreign  voyage  shall  be  granted  to 
any  ship  or  vessel,  owned,  hired  or  employed,  wholly  or  in  part,  by 
any  person  resident  within  the  United  States,  until  a  bond  shall  be 
given,  to  the  use  of  the  United  States,  wherein  the  owner  or  employer, 
if  usually  resident  or  pr-.  o.  ♦  where  the  clearance  shall  be  required, 
and  otherwise  his  agcr.^  cr  .ac.ir,  and  the  master  or  captain  of  such 


ship  or  vessel,  for  th  iiitr-  ,ed  vor 
to  the  value  of  the  'i.;^  or  vc  ^^.e/,  t- 
cargo,  and  shall  fM  uff  en*  ,un.  ; 
half  of  the  prin-  •  .  I  -un  .  v  .  oac 
ing  her  intendc  .*  -^  .0  '-.{cr.  1 
proceed  or  be  r  >  -d,  d  »ci  /  c,  ir^ 
the  territory  c  .  t-  i^'r..'ri,  '• 
any  place  in  the  ^^'-'si 


''  be  parties,  in  a  sum  equal 

il     f  i  •  third  of  the  value  of  her 

'.      1'  ies  to  the  amount  of  one 

io;.  .''i:i    the  same  shall  not,  dur- 

retn  n    /ithin  the  United  States, 

"Ttly,  .0  any  port  or  place  within 

y  0  'x,  I  r  ti  e  dependencies  thereof,  or 

or  V  '  whpi  ;,  under  the  acknowledged 


government  of  Fraiice.  uru^ss  ay  .-^f.  vi!  orce  and  violence,  to  be  fully 
proved  and  manifested  b  t,  ^e  aajuit  ,ince  of  such  bond,  and  that 
such  vessel  is  not,  anu  r  "  :t  b*  r- ..ployed,  during  her  intended 
voyage,  or  before  her  return,  as  aforesaid,  in  any  traffic  or  commerce, 
with  or  for  any  person  resident  within  the  territory  of  that  Republic, 
or  in  any  of  the  dependencies  thereof :  Provided,  that  in  no  case,  the 
surety  or  sureties  shall  be  answerable  for  more  than  ten  thousand 
dollars. 

Sec.  3.  And  be  it  further  enacted,  That  from  and  after  the  .said  third 
day  of  March,  no  French  ship  or  vessel,  armed  or  unarmed,  commis- 
sioned by  or  for,  or  under  the  authority  of  the  French  Republic,  or 
owned,  fitted,  hired  or  employed  by  any  person  resident  within  the 
territory  of  that  Republic,  or  any  of  the  dependencies  thereof,  or  sail- 
ing or  coming  therefrom  (excepting  as  is  hereinafter  e.icepted),  shall 
be  allowed  an  entry,  or  to  remain  v,Mthin  the  te  •:  'ton'  of  *he  United 
States,  unless  driven  thither  by  distress  c  weath  .  or  in  want  of  pro- 
vi.sions.  And  if,  contrary  to  the  intent  hereof,  a..^  ^uch  ship  or  vessel 
shall  be  found  within  the  jurisdictional  limiis  of  the  United  States, 
not  being  liable  to  seizure  for  any  other  cause,  the  company  having 


f 


70 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


charge  thereof,  shall  be  required  to  depart  and  carry  away  the  same, 
avoiding  all  unnecessary  delay;  and  if  they  shall,  notwithstonding,  re- 
main, it  shall  be  the  duty  of  the  collector  of  the  district  wherein,  or 
nearest  to  which,  such  ship  or  vessel  shall  be,  to  scire  and  detain  the 
same,  at  the  expense  of  the  United  States:  PfuMtd,  that  in  the  case 
of  vessels  hereby  prohibited,  which  shall  be  driven  by  distress  of 
weather,  or  want  of  provisions,  into  any  port  or  place  of  the  United 
States,  they  may  be  suffered  to  remain  under  the  custody  of  the  col- 
lector there,  or  nearest  thereto,  until  suitable  repairs  or  supplies  can 
be  obtained;  and  as  soon  as  may  be  thereafter,  shall  be  required  and 
suffered  to  depart ;  but  iio  part  of  the  lading  of  such  vessel  shall  be 
taken  out,  or  disposed  of,  unless  by  the  special  permit  of  such  collector, 
to  defray  the  unavoidable  expense  of  such  repairs  or  supplies. 

Sec.  4.  Provided,  and  be  it  further  enacted,  That  at  any  time 
after  the  passing  of  this  act,  it  shall  be  lawful  for  the  President  of 
the  United  States,  if  he  shall  deem  it  expedient  and  consistent  with 
the  interest  of  the  United  States,  by  his  order,  to  remit  and  discon- 
tinue, for  the  time  being,  the  restraints  and  prohibitions  aforesaid, 
either  with  respect  to  the  French  Republic,  or  to  any  island,  port  or 
place  belonging  to  the  said  Republic,  with  which  a  commercial  inter- 
course may  safely  be  renewed ;  and  also  to  revoke  such  order,  when- 
ever, in  his  opinion,  the  interest  of  the  United  States  shall  require ;  and 
he  shall  be,  and  hereby  is  authorised  to  make  proclamation  thereof 
accordingly. 

Sec.  5.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  to  give  instructions  to  the  commanders 
of  the  public  armed  ships  of  the  United  States,  to  stop  and  examine 
any  ship  or  vessel  of  the  United  States  on  the  high  sea,  which  there 
may  be  reason  to  suspect  to  be  engaged  in  any  traffic  or  commerce 
contrary  to  the  true  tenor  hereof ;  and  if,  upon  examination,  it  shall 
appear  that  such  ship  or  vessel  is  bound  or  sailing  to  any  port  or  place 
within  the  territory  of  the  French  Republic,  or  her  dependencies,  con- 
trary to  the  intent  of  this  act.  it  shall  be  the  duty  of  the  connander 
of  such  public  armed  vessel,  to  seize  every  ship  or  vessel  engaged  in 
such  illicit  commerce,  and  send  the  same  lo  the  nearest  port  in  the 
United  States ;  and  every  such  ship  or  vessel,  thus  bound  or  sailing 
to  any  such  port  or  place,  shall  uix)n  due  proof  thereof,  be  liable  to  the 
like  penalties  and  forfeitures,  as  art-  provided  in  and  by  the  first  sec- 
tion of  this  act. 


ACTS  OF  CONGRESS 


71 


Sec.  6.  And  be  it  further  enacted.  That  whenever  any  ship  or 
e.sel,  owned  wholly  or  in  part,  or  employed  by  any  citizen  or  citizens 
of  the  United  States,  and  coming  from  any  port  or  place  within  the 
territory  of  the  French  Republic,  or  the  dependencies  thereof,  which 
has  arrived  within  any  port  or  place  of  the  United  States  since  the 
first  day  of  December  last  past,  or  which  shall  hereafter  arrive,  hath 
been  or  hereafter  shall  be  seized  and  detained  by  virtue  of  this  act,  or 
of  an  act,  intituled  "An  act  to  suspend  the  commercial  intercourse  be- 
tween the  United  States  and  France,  and  the  dependencies  thereof," 
it  shall  be  lawful  for  any  person  claiming  such  ship  or  vessel,  to  pre- 
fer his  petition  to  the  judge  of  the  district  in  which  such  seizure  shall 
be  made,  setting  forth  he  circumstances  of  his  case,  and  to  pray  that 
the  same  ship  or  vessel,  and  her  cargo,  may  be  restored ;  and  the  said 
judge  shall  thereupon  inquire,  in  a  summary  manner,  into  the  circum- 
stances of  the  case,  first  causing  reasonable  notice  to  be  giv'«n  to  the 
attorney  of  the  United  States  for  such  district,  and  to  the  collector  of 
the  district  by  whom  such  seizure  or  detention  hath  been  or  shall  be 
made,  that  each  may  have  an  opportunity  of  showing  cause  against 
the  prayer  of  such  petition ;  and  shall  cause  the  facts  'which  shall  ap- 
pear upon  such  inquiry,  to  be  stated  and  annexed  to  the  petition,  and 
direct  their  transmission  to  the  Secretary  of  the  Treasury;  and  if  it 
shall  appear  to  his  satisfaction,  that  such  ship  or  vessel  was  captured 
or  driven  into  such  port  or  place  by  distress  of  weather,  or  want  of 
provisions,  or  was  unavoidably  detained  and  delayed  by  some  embargo, 
arrest,  capture,  contrary  winds,  or  other  unavoidable  casualty,  without 
any  fault,  wilful  negligence,  or  intention  to  evade  the  provisions  of  the 
act  before  mentioned,  or  of  this  act,  in  any  such  claimant,  the  Secre- 
tary of  the  Treasury  shall  order  the  restoration  of  said  vessel  and 
cargo  to  such  claimant,  upon  such  terms  and  conditions  as  he  may 
deem  reasonable  and  just ;  otherwise,  and  in  all  cases  wherein  such 
petition  shall  not  be  presented,  every  ship  or  vessel  that  has  arrived 
since  the  said  first  day  of  December,  from  any  port  or  place  in  the 
French  Republic,  or  the  dependencies  thereof,  or  which  shall  hereafter 
arrive  within  any  port  or  place  of  the  United  States,  unless  driven  by 
stress  of  weather  or  want  of  provisions,  shall  be  liable  to  be  prosecuted 
and  condemned  in  the  same  manner  and  to  the  same  uses  as  are  pro- 
vided in  and  by  the  first  section  of  this  act ;  and  like  proceedings  shall 
also  be  had  and  like  forfeitures  incurred,  as  are  herein  provided  with 
respect  to  vessels  coming  from  France,  and  the  dependencies  thereof. 


72 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


in  all  cases  when  any  ship  or  vessel  shall  arrive  in  any  port  or  place 
of  the  United  States,  from  any  port  or  place,  with  which  all  commer- 
cial intercourse  shall  be  prohibited  by  proclamation,  according  to  the 
intent  of  this  act. 

Sec.  7.  Provided,  and  be  it  further  enacted.  That  nothing  in  this 
act  contained  shall  extend  to  any  ship  or  vessel  to  which  the  President 
of  the  United  States  shall  grant  a  permission  to  enter  or  to  clear; 
which  permission  he  is  hereby  authorized  to  grant  to  vessels  which 
shall  be  solely  employed  in  any  purpose  of  political  or  national  inter- 
course, or  to  aid  the  departure  of  any  French  persons,  with  their 
goods  and  effects,  who  shall  have  been  resident  within  the  United 
States,  when  he  may  think  requisite. 

Sec.  8.  And  be  it  further  enacted.  That  this  act  shall  continue 
and  be  in  force  until  the  third  day  of  March,  in  the  year  one  thousand 
eight  hundred. 

Approved,  February  9,  1799. 


An  Act  for  the  Government  of  the  Navy  of  the  United  States^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  UniUd  Stales  of  America  in  Congress  assembled.  That  the  fol- 
lowing rules  and  regulations  be  adopted  and  put  in  force,  for  the  gov- 
ernment of  the  navy  of  the  United  States. 

-Article  1.  The  commanders  of  all  ships  and  vessels,  belonging  to 
the  Ignited  States,  are  strictly  required  to  show  in  themselves  a  good 
example  of  honour  and  virtue  to  their  officers  and  men,  and  to  be  very 
vigilant  in  inspecting  the  behaviour  of  all  such  as  are  under  them,  and 
to  discountenance  and  suppr*  s  all  dissolute,  immoral,  and  disorderly 
practices,  and  al.so  such  as  are  contrary  t(>  the  rules  of  discipline  and 
obedience,  and  to  correct  those  who  are  guilty  of  the  same,  according 
to  the  usage  of  the  sea  service. 

2.  The  conmiandcrs  of  the  ships  of  the  I'nited  States,  having  on 
iMjard  chaplains,  arc  to  take  care,  that  divine  service  b«-  performed  twice 
a  day,  and  a  sermon  preached  on  Sundays,  unless  liad  weather,  or  other 
extraordinar>'  accidents  prevent. 

3.  .\ny  person  who  shall  be  guilty  of  profane  swearing,  or  of  drunk- 


I 


'  Statutes  at  Large,  vol    1,  p.  TOM. 


ACTS  OF  CONGRESS 


73 


enness,  if  a  seaman  or  marine,  shall  be  put  in  irons  until  sober,  and 
then  (logged  if  the  captain  shall  think  proper — but  if  an  officer,  he  shall 
forfeit  two  days  pay,  or  incur  such  punishment  as  a  court  martial  shall 
impose,  and  as  the  nature  and  degree  of  the  offence  shall  deserve. 

4.  No  commander,  for  any  one  offence,  shall  inflict  any  punishment 
upon  a  seaman  or  marine  beyond  twelve  lashes  upon  his  bare  back  with 
a  cat  of  nine  tails,  and  no  other  cat  shall  be  made  use  of  on  board  any 
ship  of  war,  or  other  vessel  belonging  to  the  United  States — if  the  fault 
shall  deserve  a  greater  punishment,  he  is  to  apply  to  the  Secretary  of  the 
Navy,  the  commander  in  chief  of  the  navy,  or  the  commander  of  a 
squadron,  in  order  to  the  trying  of  him  by  a  court  martial ;  and  in  the 
mean  time  he  may  put  him  under  confinement. 

5.  The  commander  is  never  by  his  own  authority  to  discharge  a  com- 
mission or  warrant  officer,  nor  to  punish  or  strike  him,  but  he  may  sus- 
pend or  confine  him.  and  shaU  report  the  case  to  the  Secretary  of  the 
Navy,  or  commandant  of  a  squadron,  as  soon  as  he  arrives  in  port,  if  at 
sea,  or  if  in  port  in  ten  days,  in  order  that  a  court  martial  may  decide 
on  the  ofleiKc. 

6.  The  officer  who  commands  by  accident  in  the  captain  or  com- 
nder's  absence  (unless  he  be  absent  for  a  time  by  leave)  shall  not 

der  any  correction  but  confinement,  and  upon  the  captain's  return  on 
bfiard,  he  shall  then  give  an  account  of  his  reasons  for  so  doing. 

7.  The  captain  is  to  cause  the  articles  of  war  to  be  hung  up  in  some 
public  place  of  the  ship,  and  read  to  the  ship's  company  once  a  month. 

S.  Whenever  a  captain  shall  enter  or  enlist  a  seaman,  he  shall  take 
care  to  enter  on  his  books,  the  time  and  terms  of  his  entering,  in  order 
to  his  being  justly  paid. 

9.  The  captain  shall,  before  he  sails,  make  return  to  the  Secretary  of 
the  Navy  a  complete  list  of  all  his  officers  and  men,  with  the  tiitie  and 
terms  of  their  entering,  and  during  h«s  cruise  or  station,  shall  keep  a 
true  account  of  the  desertion  or  death  of  any  of  them,  and  of  tin-  cn- 
terini,'  of  others,  and  after  the  expiration  of  the  time  for  which  they 
were  entered,  and  before  any  of  them  are  paid  off.  he  shall  make  return 
of  a  complete  list  of  the  same,  includini;  ihoM-  «ho  shall  remain  on 
hoard  his  ship. 

10.  The  men  shall,  at  their  request,  be  furnished  with  slops  that  are 
necessary,  by  order  of  the  captain,  and  the  amount  delivered  to  each 
m.in.  shall  he  roLjtil.nrly  retiiiiied  by  the  purser,  so  that  the  same  be 
stopped  out  of  his  pay. 


w 


If 


74 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


r-0 


11.  All  officers  not  having  commissions  or  warrants,  (or  appointed 
commission  or  warrant  officers  for  the  time  being)  are  termed  petty, 
or  inferior  officers. 

12.  Whenever  any  inferior  officer,  seaman,  or  other  person,  be  turned 
over  into  the  ship  of  a  commander  other  than  the  one  with  whom  he 
entered,  he  is  not  to  be  rated  on  the  ship's  books,  in  a  worse  quality,  or 
lower  degree  or  station,  than  he  served  in  the  ship  he  was  removed 
from ;  and  for  the  guide  of  the  captain,  he  is  to  demand  from,  the  com- 
mander of  the  ship  from  which  such  person  or  persons  were  turned 
over,  a  list,  under  his  hand,  of  his  or  their  names,  and  the  quality  in 
which  he  or  they  served. 

13.  Any  officer,  seaman  or  other  person,  entitled  to  wages  or  prize 
money,  may  have  the  same  paid  to  his  assignee,  provided  the  assign- 
ment be  attested  by  the  captain  and  the  purser;  but  the  captain  or 
commander  of  every  vessel  in  the  service  of  the  United  States,  is  to  dis- 
courage his  crew  from  selling  any  part  of  their  wages  or  prize  nionev, 
and  never  to  attest  the  letter  of  attorney  until  he  is  satisfied  that  the 
same  is  not  granted  in  consideration  of  money  given  for  the  purchase 
of  wages,  or  shares  of  prize  money. 

14.  When  any  officer  or  other  person  dies,  the  captain  is  forthwith  to 
have  his  name  entered  on  the  books  of  the  ship,  in  order  to  the  wages 
being  forthwith  paid  to  his  executors  or  administrators. 

15.  .\  convenient  place  .shall  be  set  apart  for  the  sick  or  hurt  men,  to 
which  they  are  to  be  removed  with  their  hammocks  and  bedding,  when 
the  surgeon  shall  advise  the  same  to  be  necessary,  and  some  of  the  crew 
shall  be  appointed  to  attend  them,  and  keep  the  place  clean ; — cradles 
and  buckets  with  covers,  shall  be  made  for  their  use.  if  necessary. 

16.  .Ml  ships  furnished  with  fishing  tackle,  being  in  such  places 
where  fish  is  to  be  had.  the  captain  is  to  employ  some  of  the  company 
in  fishing:  The  fish  to  be  daily  distributed  to  such  persons  as  are  sick, 
or  upon  recovery,  provided  the  surgeon  recommend  it.  and  the  surplus, 
hv  turns,  amongst  the  messes  of  the  officers  and  seamen,  gratis,  without 
any  deduction  of  their  allowance  of  provisions  on  that  account. 

17.  It  is  left  to  the  discretion  of  commanders  of  squadrons,  to  shorten 
the  allowance  of  provisions  according  to  the  exigence  of  the  service, 
taking  care  that  the  men  be  punctually  paid  for  the  same — the  like 
power  is  given  to  captains  of  ships  acting  singly,  where  it  is  deemed 
necessary,  and  if  there  should  be  a  want  of  pork,  the  captam  is  to 
order  three  pounds  of  bcei  to  be  issued  in  lieu  of  two  pounds  of  p<irk 


•"T'^f^oH^rr^ 


'.»   rl 


ACTS  OF  CONGRESS 


75 


18.  If  any  ships  of  the  United  States  shall  happen  to  come  into  port 
in  want  of  provisions,  the  warrant  of  the  commander  of  the  squadron, 
or  of  a  captain  where  there  is  no  commander  of  a  squadron  present, 
shall  be  sufficient  to  procure  the  supply  of  the  quantity  wanted,  from 
the  agent,  or  navy  agent  at  such  port. 

19.  The  captains  are  frequently  to  cause  to  be  inspected  the  condi- 
tion of  the  provision,  and  if  the  bread  proves  damp,  to  have  it  aired 
upon  the  quarter  deck,  and  other  convenient  places,  and  in  case  of  the 
pickle  being  leaked  out  of  the  flesh  casks,  he  is  to  have  new  pickid 
made  and  put  therein,  after  such  casks  are  repaired. 

20.  The  captain  shall  cause  the  purser  to  secure  the  clothes,  bedding 
and  other  things,  of  such  persons  as  shall  die  or  be  killed,  to  be  de- 
livered to  their  executors  or  administrators. 

21.  All  papers,  charter-parties,  bills  of  lading,  passports,  and  other 
writings  whatsoever,  found  on  board  any  ship  or  ships  which  shall  be 
taken,  shall  be  carefully  preserved  and  the  originals  sent  to  the  court 
of  justice  for  maritime  affairs,  appointed  or  to  be  appointed  for  judging 
concerning  such  prize  or  prizes,  and  if  any  person  or  persons  shall  wil- 
fully or  negligently  destroy  or  suffer  to  be  destroyed  any  such  paper  or 
papers,  he  or  they  so  offending  shall  forfeit  his  or  their  share  of  such 
prize  or  prizes,  and  suffer  such  other  punishment  as  they  shall  be  judged 
by  a  court  martial  to  deserve  ;  and  if  any  person  or  persons  shall  embez- 
zle or  steal,  or  take  away  any  cables,  anchors,  sails  or  any  of  the  ship's 
furniture,  or  any  of  the  powder,  arms,  ammunition,  or  provisions  of  any 
ship  belonging  to  the  United  States,  or  of  any  prize  taken  by  a  ship  or 
ships,  aforesaid,  or  maltreat  or  steal  the  effects  of  any  prisoner,  he  or 
they  so  offending  shall  suffer  such  punishment  as  a  court  martial  shall 
order. 

22.  When  in  sight  of  any  ship,  ships,  or  other  vessels  of  the  enemy, 
or  at  sjich  other  times  as  may  appear  necessary  to  prepare  for  an  en- 
gagement, ihe  captain  shall  order  all  things  in  his  ship  in  a  proper 
posture  for  fight,  and  shall,  in  his  own  person,  and  according  to  his  duty, 
heart  on,  and  encourage  the  inferior  officers  and  men  to  fight  courage- 
ouslv.  and  not  to  behave  themselves  faintly  or  cry  for  quarters,  on  pain 
(if  such  punishment  as  the  offence  shall  n)  lear  to  deserve  for  bis 
neglect. 

23  .*iny  captain,  officer  or  other  per-snn  who  shall  not  exert  himself, 
or  who  shall  basely  desert  his  duty  or  station  in  the  ship,  .ind  run  away 
while  the  enerny  is  in  sight,  or  in  time  of  action,  or  shall  entice  others 


"W 


76 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


to  do  so,  shall  suffer  death,  or  such  other  punishment  as  a  court  martial 
shall  inflict. 

24.  Any  officer,  seaman,  martner  or  other  person  who  shall  disobey 
the  orders  of  his  superior,  or  begin,  excite,  cause  or  join  in  any  mutiny 
or  sedition  in  the  ship  to  which  he  belongs,  or  in  any  other  ship  or  ves- 
sel in  the  service  of  the  United  States,  on  any  pretence  whatsoever,  shall 
suffer  death,  or  such  other  punishment  as  a  court  martial  shall  direct ; 
and  further,  any  person  in  any  ship  or  vessel  belonging  to  the  service 
aforesaid,  who  shall  utter  any  words  of  sedition  and  mutiny,  or  en- 
deavour to  make  any  mutinous  assembly  on  any  pretence  whatsoever, 
shall  suffer  such  punishment  as  a  court  martial  shall  inflict. 

25.  None  shall  presume  to  quarrel  with  or  strike  his  superior  officer, 
on  pain  of  such  punishment  as  a  court  martial  shall  order  to  be  in- 
flicted. 

26.  If  any  person  shall  apprehend  he  has  just  cause  of  complaint,  he 
shall  fiuietly  and  decently  make  the  same  known  to  his  superior  officer, 
or  to  the  captain,  as  the  case  may  require,  who  shall  take  care  that 
justice  be  done  him. 

27.  There  shall  be  no  quarreling  or  fighting  between  ship  mates  on 
board  any  ship  belonging  to  the  United  States,  nor  shall  there  be  used 
any  reproachful  or  provoking  speeches,  tending  to  make  quarrels  and 
disturbances,  on  pain  of  imprisonment,  or  of  such  punishment  as  the 
captain,  or  a  court  martial  shall  judge  proper  to  inflict. 

28.  If  any  person  shall  sleep  upon  his  watch,  or  negligently  perform 
the  duty  which  shall  be  enjoined  him  to  do.  he  shall  suffer  such  punish- 
ment as  the  captain,  or  a  court  martial  shall  inflict. 

29.  All  murder  shall  be  punished  with  death. 

30.  All  robbery  and  theft,  not  exceeding  twenty  dollars,  shall  be  pun- 
ished at  the  discretion  of  the  captain,  and  above  that  sum  as  a  court 
martial  shall  inflict. 

31.  .\ny  master  of  arms,  or  other  person  of  whom  the  like  duty  may 
be  re<|uired,  refusing  to  receive  such  prisoner  or  pri.soners,  as  shall  lie 
committed  to  his  charge,  or  having  received  them  .shall  suffer  him  or 
them  to  escape,  or  dismiss  them  without  orders  from  his  captain,  the 
cmnmander  in  chief  of  the  navy  or  the  commander  of  the  squadron,  for 
so  doing,  shall  suffer  in  his  or  their  stead  as  a  court  martial  shall  order 
and  direct. 

M.  The  captains,  officers  and  others  shall  use  their  utmost  endeavours 
to  detect,  apprehend,  and  bring  to  punishment  all  offenders,  and  shall  at 


-^■1 


ACTS  OF  CONGRESS 


T7 


all  times  readily  assist  all  officers  and  others  appointed  for  that  purpose, 
in  the  discharge  of  such  duty,  when  it  is  required,  on  pain  of  being  pro- 
ceeded against  and  punished  by  a  court  martial  at  discretion. 

33.  If  any  officer  whatsoever,  mariner,  marine  soldier,  or  other  per- 
son, belonging  to  any  ship  or  vessel  of  war  in  the  service  of  the  United 
States,  shall  give,  hold  or  entertain  intelligence,  to  or  with  any  enemy 
or  rebel,  without  leave  from  the  government,  commander  in  chief,  or  in 
case  of  a  single  ship,  from  his  captain,  every  such  person  so  offending, 
and  being  thereof  convicted  by  the  sentence  of  a  court  martial,  shall  be 
punished  with  death. 

34.  If  any  letter  or  message  from  an  enemy  or  a  rebel  be  conveyed  to 
any  officer,  mariner,  marine  or  other  person,  belonging  to  any  ship  or 
vessel  in  the  service  of  the  United  States,  and  the  person  as  aforesaid 
shall  not  within  twelve  hours,  having  opportunity  so  to  do,  acquaint  his 
superior  or  commander  in  chief  with  it ;  or  if  any  superior  officer  being 
acquainted  therewith,  shall  not  in  convenient  time  reveal  the  same  to 
the  commander  in  chief,  commander  of  a  squadron  or  other  proper 
officer,  appointed  to  take  cognizance  of  such  offence,  every  such  person 
so  offending,  and  being  convicted  thereof,  by  the  sentence  of  a  court 
martial,  shall  be  punished  with  death,  or  such  other  punishment  as  the 
nature  and  degree  of  the  offence  shall  deserve,  and  according  to  the 
sentence  of  a  court  martial. 

3.'>.  .Ml  spies,  and  all  persons  whatsoever  who  shall  come  or  be  found 
in  the  nature  of  spies,  to  bring  or  deliver  any  seducing  letter  or  message, 
from  an  enemy  or  rebel,  or  endeavour  to  corrupt  any  captain,  officer, 
mariner,  marine,  or  other  person  in  the  fleet,  to  betray  his  trust,  being 
convicted  of  any  such  offence  by  the  sentence  of  a  court  martial,  shall 
be  punished  with  death,  or  such  other  punishment  as  the  nature  and 
degree  of  the  offence  shall  deserve,  and  the  court  martial  shall  impose. 

36.  No  person  in  a  fleet,  or  in  a  single  ship  or  vessel,  shall  supply  an 
enemy  or  rebel  with  stores,  money,  victuals,  arms,  ammunition,  or  any 
kind  of  stores,  directly  or  indirectly,  upon  pain  of  death,  or  such  other 
punishment  as  a  court  martial  shall  think  fit  to  impose,  and  as  the  nature 
and  degree  of  the  crime  shall  deserve. 

^7.  Every  person  in  or  belonging  to  any  ship  or  vessel  in  the  service 
of  the  United  States,  who  shall  desert  or  run  away  with  any  vessel  or 
boat,  to  the  enemy  or  otherwise,  or  with  anv  effects  of  the  United 
States,  whatsoever,  or  yield  up  the  same  cowardly  or  treacherously. 


.  1  ■ 

I  ;  I 

■  i 

I  ■ 


78  THE  CONTROV'tRSY  WITH  FRANCE.  1797-1800 

shall  suffer  death,  or  such  other  punishment  as  a  court  martial  shaU 

inflict. 

38  The  officers  and  seamen.  &c.,  of  all  ships  appomted  for  convoy 
and  guard  of  merchantmen,  shall  diligently  attend  upon  that  charge 
without  delay,  according  to  their  instructions,  and  whosoever  shall  be 
faulty  therein,  shall  be  punished  as  a  court  martial  shall  direct. 

39'  If  any  captain,  commander  or  other  officer  of  any  ship  or  vessel 
in  the  service  of  the  United  States,  shall  receive  or  permit  on  board  his 
vessel  any  goods  or  merchandise,  other  than  for  the  sole  use  of  his  ves- 
sel, except  gold,  silver,  or  jewels,  and  except  the  goods  and  merchan- 
dise of  vessels  which  may  be  in  distress  or  shipwrecked,  or  in  immment 
danger  of  being  shipwrecked  in  order  to  preserve  them  for  the  proper 
owner,  without  legal  orders  from  the  naval  department,  every  person 
so  offending  being  convicted  thereof,  by  the  sentence  of  a  court  martial, 
shall  be  cashiered,  and  be  for  ever  afterwards  rendered  incapable  to 
serve  in  any  place  or  office  in  the  navy  service  of  the  United  States. 

40  There  shall  be  no  wasteful  expense  of  any  powder,  shot,  ammu- 
nition or  other  stores  in  the  vessels  belonging  to  the  United  States,  nor 
anv  embezzlement  thereof,  but  the  stores  and  provisions  shall  be  care- 
fuilv  preserved,  upon  pain  of  such  punishment,  to  be  inflicted  upon  the 
offenders,  abettors,  buyers  and  receivers,  as  shall  be  by  a  court  martial 
found  just  in  that  behalf. 

41  Every  person  in  the  navy  who  shall  unlawfully  bum  or  set  fire  to 
anv  kind  of  public  property,  not  then  appertaining  to  an  enemy,  pirate 
or  rebel,  being  convicted  of  any  such  offence  by  the  sentence  of  a  court 
martial,  shall  suffer  death. 

42  Care  shall  be  taken  in  steering  and  conducting  every  ship  belong- 
ing to  the  United  States,  so  that  through  wilfulness,  negligence  or 
other  defaults,  no  ship  be  stranded  or  hazarded,  upon  pain  that  such  as 
shall  be  found  guilty  therein,  be  punished  as  the  offence,  by  a  court 
martial,  shall  be  judged  to  deserve. 

43  Every  officer  or  other  person  in  the  navy,  who  shall  knowingly 
make  or  sign  a  false  muster,  or  procure  the  making  or  signing  thereof, 
or  shall  aid  or  abet  in  the  .same,  shall  be  cashiered  and  rendered  inca- 
pable of  fur  .her  employment  in  the  navy  service  of  the  Lnited  -states, 
and  shall  forfeit  all  the  pay  and  subsistence  money  due  to  him. 

^4  Everv  person  guilty  of  mutiny,  desertion  or  disobedience  to  hi^ 
superior  officer  on  shore,  acting  in  the  proper  line  of  his  duty,  shall  be 
tried  hv  a  court  martial,  and  suffer  the  like  punishment  for  every  such 


ACTS  OF  CONGRESS 


79 


offence,  as  if  the  same  had  been  committed  at  sea,  on  board  any  ship  or 
vessel  of  war  in  the  service  of  the  United  States. 

45.  If  any  person  belonging  to  any  ship  or  vessel  of  war  in  the  ser- 
vice of  the  United  States,  shall,  when  on  shore,  on  duty,  or  otherwise, 
plunder,  abuse,  or  maltreat  any  inliabitant,  or  injure  his  property  in 
any  way,  such  person  shall  Ih*  punished  as  a  court  martial  shall  direct. 

46.  All  faults,  disorders  and  misdemeanors  which  shall  be  committed 
on  board  any  ship  belonging  to  the  United  States,  and  which  are  not 
herein  mentioned,  sha!!  be  punished  according  to  the  laws  and  customs 
in  such  cases  at  sea. 

47.  No  court  martial,  to  be  held  or  appointed  by  virtue  of  this  act, 
shall  consist  of  more  than  thirteen,  iior  less  than  five  persons,  to  be 
composed  of  such  commanders  of  squadrons,  captains  and  sea  lieu- 
tenants, as  are  then  and  there  present,  and  as  are  next  in  seniority  to 
the  oflRcer  who  presides ;  but  no  lieutenant  shall  sit  on  a  court  martial, 
held  on  a  captain,  or  a  junior  lieutenant  on  that  of  a  senior. 

48.  Every  member  of  a  court  martial  shall  take  the  following  oath : 
"1,  A.  B.  do  swear,  that  I  will  well  and  truly  try  and  impartially  deter- 
mine the  cause  of  the  prisoner  now  to  be  tried,  according  to  the  rules 
of  the  navy  of  the  United  States.  So  help  me  God."  Which  oath  shall 
be  administered  by  the  president  to  the  other  members,  and  the  presi- 
dent himself  shall  be  sworn  by  the  officer  next  in  rank ;  and  as  soon  as 
the  above  oath  shall  have  been  administered,  the  president  of  the  court 
is  required  to  administer  to  the  judge  advocate,  or  person  officiating  as 
such,  an  oath  in  the  following  words:  "I,  A.  B.  do  swear,  that  I 
will  not,  upon  any  account,  at  any  time  whatsoever,  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  this  court 
martial,  unless  thereto  required  by  an  act  of  Congress.  So  help 
me  God."  And  all  the  witnesses,  before  they  be  admitted  to  give  evi- 
dence, shall  take  the  following  oath:  "I,  A.  B.  do  swear,  that  the 
evidence  I  shall  give  in  the  cause  now  in  hearing,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.     So  help  me  God." 

49.  The  sentence  of  a  court  martial  for  any  capital  offence  shall  not 
be  put  in  execution,  until  it  be  confirmed  by  the  commander  in  chief  of 
the  fleet.  .\nd  it  shall  be  the  duty  of  the  president  of  every  court 
martial,  to  transmit  to  the  commander  in  chief  of  the  fleet,  and  to  the 
head  of  the  Navy  department,  every  sentence  which  shall  be  given, 
with  a  summary  of  the  evidence  and  proceedings  thereon,  as  soon  as 
mav  be. 


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Si 


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80 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


50.  The  commander  in  chief  of  the  fleet,  for  the  time  being,  shall 
have  power  to  pardon  and  remit  any  sentence  of  death,  in  consequence 
of  any  of  the  aforementioned  articles. 

Sec.  2.  And  it  is  hereby  further  enacted,  That  if  any  person  in  the 
navy  service,  being  called  upon  to  give  evidence  at  any  court  martial, 
shall  refuse  to  give  his  evidence  upon  oath,  or  shall  prevaricate  in  his 
evidence,  or  behave  with  contempt  to  the  curt,  it  shall  and  may  be 
lawful  for  such  court  martial  to  punish  such  offender  by  imprisonment, 
at  the  discretion  of  the  court ;  such  imprisonment,  in  no  case,  to  con- 
tinue longer  tlian  three  months ;  and  that  all  and  every  person  and  per- 
sons, who  shall  commit  any  wilful  perjury  in  any  evidence  or  examina- 
tion upon  oath  at  such  court  martial,  or  who  shall  corruptly  procure  or 
suborn  any  person  to  commit  such  wilful  perjury,  shall  and  may  be 
prosecuted  in  any  of  the  courts  of  the  United  Str.tes,  by  indictment  or 
information.  And  all  and  every  person,  lawfully  convicted  upon  any 
such  indictment  or  information,  shall  be  punished  with  such  pains  and 
penalties  as  are  inflicted  for  the  like  offences  by  the  laws  therein  pro- 
vided. 

Sec.  3.  And  it  is  hereby  further  enacted,  by  the  aitthority  aforesaid, 
That  in  all  cases  where  the  crews  of  the  ships  or  vessels  of  the  United 
States  shall  be  separated  from  their  vessels,  by  the  latter  being  wrecked, 
lost,  or  destroyed,  all  the  command,  power  and  authority  given  to  the 
officers  of  such  ships  or  vessels,  shall  remain  and  be  in  full  force  as 
effectually  as  if  such  ship  or  vessel  was  not  so  wrecked,  lost  or  de- 
stroyed, until  they  shall  be  regularly  discharged  from  the  service  of  the 
United  Stotes.  or  removed  into  some  other  of  its  said  ships,  or  until  a 
court  martial  shall  be  held,  to  inquire  into  such  loss  of  the  said  ship  or 
vessel;  and  if  upon  inquiry  it  shall  appear  by  the  sentence  of  the  court 
martial,  that  all  or  any  of  the  officers,  seamen,  marines,  and  others  of 
the  said  ship  or  vessel,  did  their  utmost  to  preserve,  get  off,  or  recover 
the  said  ship  or  vessel,  and  after  the  loss  thereof  did  behave  themselves 
obediently  to  their  superior  officers,  according  to  the  discipline  of  the 
navy,  and  the  said  articles  and  orders  herein  before  established,  then 
all  the  pay  and  wages  of  the  said  officers  and  seamen,  or  such  of 
them  as  shall  have  done  their  duty  as  aforesaid,  shall  continue  and  R(. 
on.  and  be  paid  to  the  time  of  their  discharge  or  death;  and  every  such 
officer  or  seaman,  who  after  the  wreck  or  loss  of  his  ship  or  vessel, 
shall  act  contrary  to  the  discipline  of  the  navy,  or  the  articles  herein 
before  established,  or  any  of  them,  shall  be  sentenced  by  the  said  court 


.1 


ACTS  OF  CONGRESS 


81 


martial,  and  be  punished,  as  if  the  ship  to  which  he  did  belong'  was  not 
so  wrecked  or  destroyed. 

Sec.  4.  And  be  it  further  enacted.  That  all  the  pay  and  wages  of 
such  officers  and  seamen  of  any  of  the  ships  of  the  United  States  as 
are  taken  by  the  enemy,  and  upon  inquiry  at  a  court  martial,  shall  ap- 
pear by  the  sentence  of  the  said  court,  to  have  done  their  utmost  to 
defend  the  ship  or  ships,  and  since  the  taking  thereof,  to  have  behaved 
themselves  obediently  to  their  superior  officers,  according  to  the  dis- 
cipline of  the  navy,  and  the  said  articles  and  orders,  herein  before  es- 
tablished, shall  continue  and  go  on  as  aforesaid,  until  they  be  exchanged 
and  discharged,  or  until  they  shall  die,  whichever  may  first  happen: 
Provided  always,  that  persons  flying  from  justice  shall  be  tried  and 
punished  for  so  doing. 

Six.  5.  And  be  it  further  enacted,  That  all  captured  national  ships 
or  ves.sels  of  war  shall  be  the  property  of  the  United  States — all  other 
ships  or  vessels,  being  of  superior  force  to  the  vessel  making  the  cap- 
ture, in  men  or  in  guns,  shall  be  the  sole  property  of  the  captors — and 
all  ships  or  vessels  of  inferior  force  shall  be  divided  equally  between 
the  L'nited  States  and  the  officers  and  men  of  the  vessel  making  the 
capture. 

Sec.  6.  And  be  it  further  enacted.  That  the  produce  of  prizes  taken 
by  the  ships  of  the  United  States,  and  bounty  for  taking  the  ships  of 
the  enemy,  be  proportioned  and  distributed  in  the  manner  following, 
to  wit : — 

1.  To  the  captain  acttully  on  board  at  the  time  of  taking  any  prize, 
beinj;  other  than  a  public  or  national  vessel,  or  ship  of  war,  three  twen- 
tieths of  that  proportion  of  the  proceeds  belonging  to  the  captors. 

2.  If  such  captain  or  captains  be  under  the  immediate  command  of 
a  commander  in  chief,  or  commander  of  a  squadrr)n,  having  a  captain 
on  board,  such  commander  in  chief,  or  commander  of  a  squadron,  to 
have  one  of  the  said  twentieth  parts,  and  the  captain  taking  the  prize, 
the  other  two  twentieth  parts. 

3.  To  the  sea  lieutenants  and  sailing-master,  two  twentieths. 

4.  To  marine  officers,  the  surgeon,  purser,  boatswain,  gunner,  car- 
penter, master's  mate  and  chaplain,  two  twentieths. 

5.  To  midshipmen,  surgeon's  mates,  captain's  clerks,  clergyman  or 
schoolmaster,  boat.swain's  mates,  gunners  mates,  carpenter's  mates, 
ship's  steward,  sail-maker,  master  at  arms,  armorer,  and  cockswain, 
three  twentieths. 


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(ANSI  and  ISO  TEST  CHART  No  J) 


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82  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

6.  Gunner's  yeoman,  boatswain's  yeoman,  quartermasters,  quarter- 
gunners,  cooper,  sail-maker's  mates,  sergeant  of  marines,  corporal  of 
marines,  drummer  and  fifer  and  extra  petty  officers,  three  twentieths. 

7.  To  seamen,  ordinary  seamen,  marines  and  boys,  seven  twentieths. 

8.  Any  officer  on  board  hiving  more  posts  than  one,  is  only  entitled 
to  the  share  belonging  to  his  superior  office,  according  to  the  regulations 

aforesaid. 

9.  Whenever  one  or  more  ships  of  the  United  States  are  in  sight,  at 
the  time  of  any  one  or  more  other  ships  as  aforesaid  are  taking  a  prize 
or  prizes,  or  being  engaged  with  an  enemy,  and  they  shall  all  be  so  in 
sight,  when  the  enemy  shall  strike  or  surrender,  they  shall  share 
equally,  according  to  the  number  of  guns  and  men  on  board  of  each 
ship  so  in  sight— but  no  privateer  or  armed  ship,  being  in  sight  of  a 
national  ship  of  war,  at  the  taking  of  any  prize,  shall  be  entitled  to  any 
share  in  such  prize  or  prizes. 

10.  Commanders  of  ships  of  war  taking  any  prize,  are  to  transmit, 
as  soon  as  possible,  to  the  naval  department,  a  true  list  of  the  officers 
and  men  actually  on  board  at  the  taking  of  such  prize,  inserting  therein 
the  quality  of  every  person's  rating ;  and  the  department  aforesaid  is 
to  examine  the  said  list  by  the  ships  muster  book,  to  see  their  agree- 
ment, and  is  to  grant  certificates  of  the  truth  of  such  list  transmitted, 
in  order  that  the  agents  appointed  by  the  captors,  make  payment  of  the 
shares,  agreeably  to  this  act. 

11.  In  order  to  define  the  rights  and  privileges  of  commanders  in 
chief,  commanders  of  squadrons  and  captains,  in  relation  to  captures- 
No  commander  in  chief,  or  commander  of  a  squadron,  shall  be  entitled 
to  receive  any  share  of  prizes  taken  by  the  ships  of  war  of  the  United 
States  that  are  not  put  under  his  immediate  command,  nor  of  such 
prizes  as  niav  have  been  taken  previous  to  such  ships  being  placed 
under  his  command,  and  until  they  have  acted  under  his  immediate 
orders  ;  nor  shall  a  commander  in  chief,  or  commander  of  a  squadron, 
returning  home  from  any  station  where  he  had  the  command,  have  any 
share  in  prizes  taken  by  ship-!  left  on  such  station,  after  he  has  got  out 
of  the  limits  of  his  said  command. 

12.  Captains,  sailing  i-ecially  under  orders  from  the  navy  depart- 
ment, are  clearly  to  be  understood  as  acting  separately  from  any  su- 
perior officer. 

1.1.  The  lx)unty  (.'iven  by  the  United  States  on  any  national  ship  of 
war,  taken  from  the  enemy  and  brought  into  port,  shall  be  for  every 


ACTS  OF  CONGRESS 


83 


cannon  mounted,  carrjing  a  ball  of  twenty-four  pounds,  or  upwards, 
two  hundred  dollars;  for  every  cannon  carrying  a  ball  of  eighteen 
pounds,  one  hundred  and  fifty  dollars ;  for  every  cannon  carrying  a  ball 
of  twelve  pounds,  one  hundred  dollars ;  and  for  every  cannon  carrying 
a  ball  of  nine  pounds,  seventy-five  dollars ;  for  every  smaller  cannon, 
fifty  dollars ;  and  for  every  officer  and  man  taken  on  board,  forty  dol- 
lars ;  which  sums  are  to  be  divided  agreeably  to  the  foregoing  articles. 

Sec.  7.  And  be  it  further  enacted.  That  for  the  ships  or  goods  be- 
longing to  the  citizens  of  the  United  States,  or  to  the  citizens  or  sub- 
jects ot  any  nation,  in  amity  with  the  United  States,  if  retaken  from 
the  enemy  within  twenty-four  hours,  the  owners  are  to  allow  one  eighth 
part  of  the  whole  value  for  salvage,  if  after  twenty-four  hours,  and 
under  forty-eight,  one  fifth  thereof,  if  above  that  and  under  ninety-six 
hours,  one  third  part  thereof,  and  if  above  that,  one  half,  all  of  which 
is  to  be  paid  without  any  deduction  whatsoever,  agreeable  to  the  arti- 
cles herein  before  mentioned. 

Sec.  8.  And  be  it  further  enacted,  That  every  officer,  seaman  or 
mariner  disabled  in  the  line  of  his  duty,  shall  be  entitled  to  receive  for 
his  own  life,  and  the  life  of  his  wife,  if  a  married  man,  at  the  time  of 
receiving  the  wound,  one  half  his  monthly  pay. 

Sec.  9.  And  be  it  further  enacted.  That  all  the  money  accruing,  or 
which  has  already  accrued  from  the  sale  of  prizes,  shall  be  and  remain 
for  ever  a  fund  for  the  payment  of  the  half  pay  to  the  officers  and  sea- 
men who  m'ly  be  entitled  to  receive  the  same — and  if  the  said  fund 
shall  be  insufficient  for  this  purpose,  the  public  faith  is  hereby  pledged 
to  make  up  the  deficiency.  But  if  it  should  be  more  than  sufficient, 
the  surplus  shall  \tc  applied  as  Congreiiirmay  hereafter  direct  by  law,  lo 
the  making  of  further  provision  for  the  comfort  of  the  disabled  officers 
seamen  and  mariners,  and  for  such  as  may  not  be  disabled,  who  may 
merit  by  their  bravery,  or  their  long  and  faithful  services,  the  grati- 
tude of  their  country-. 

Sec.  10.  And  be  it  further  enacted.  That  the  said  fund  shall  be 
under  the  management  and  direction  of  the  Secretary  of  the  Xavy,  the 
Secretary  of  the  Treasury  and  the  Secretary  at  War  for  the  time  be- 
ini;,  who  are  hereby  authorized  to  receive  all  such  sums  as  the  L'nited 
States  may  be  entitled  to,  from  the  sale  of  prizes,  and  to  invest  the 
same,  and  the  interest  arising  therefrom,  in  such  nf  the  six  per  cent.,  or 
other  stock  of  the  l'nited  States,  as  a  majority  of  them  from  time  to 
time  shall  determine  to  be  most  advantageous ;  and  it  shall  be  the  duty 


84 


THE  CONTROVERSY  WITH  FKANCK,  1797-1800 


of  the  said  commissioners  to  lay  before  Congress,  every  year,  in  the 
first  week  of  their  annual  meeting,  a  minute  and  correct  statement  of 
their  proceedings,  in  relation  to  the  management  of  said  fund. 

Sec.  11.  And  be  it  further  enacted.  That  no  rules  or  regulations 
made  by  any  conunander  in  chief,  or  captain,  in  the  service  of  the 
United  States,  for  the  stationing,  designating  of  duty  and  government 
of  the  fleet,  or  any  of  the  crews  of  any  ship  of  war,  shall  be  at  variance 
with  this  act.  but  shall  be  strictly  conformable  thereto ;  and  that  every 
commander  in  chief  and  captain,  in  making  private  rules  and  regula- 
tions, and  designating  the  duty  of  his  officers,  shall  keep  in  view  also 
the  custom  and  usage  of  the  sea  service  most  couimon  to  our  nation. 

Approved,  March  2,  1799. 


An  Act  further  to  susl^cnd  the  comiuercwl  intercourse  between  the 
Uu-tcd  StatiS  and  I  ranee,  and  the  dependencies  thereof^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  Anurica  in  Congress  assembled.  That 
all  conmiercial  intercourse  between  any  person  or  persons  resident 
within  the  United  States  or  under  their  protection,  and  any  person  or 
persons  resident  within  the  territories  of  the  Fnnch  Republic,  or  any 
of  the  dependencies  thereof,  shall  be,  and  from  ..nd  after  the  second 
day  of  March  next,  is  hereby  prohibited  and  farther  susix:nded,  ex- 
cepting only  in  the  cases  hereinafter  provided  And  any  ship  or  vessel, 
owned,  hired,  or  employed  wholly  or  in  part  by  any  person  or  persons 
resident  within  the  United  States,  or  any  citizen  or  citizens  thereof 
resident  elsewhere,  and  sailing  therefrom  after  that  day,  which  con- 
trary to  the  intent  hereof,  shall  be  voluntarily  carried,  or  shall  l)e 
destined  or  permitted  to  proceed,  or  shall  be  sold,  bartered,  entrusted 
or  transferred,  for  the  purpose  that  she  may  proceed,  whether  directly 
or  from  any  intermediate  port  or  place,  to  any  port  or  place  within  the 
territories  of  that  Republic,  or  any  of  the  dependencies  thereof;  or 
shall  be  engaged  in  any  traffic  or  commerce,  by  or  for  any  person  resi- 
dent within  the  territories  of  that  Republic,  or  within  any  of  the 
de]:)endencies  thereof  ;  and  also  any  cargo  which  shall  be  found  on  board 
of  such  shii>  or  vessel,  when  detected  and  interrupted  in  such  unlawful 

'  Statute?  .It  Large,  vol.  II,  p.  7. 


ACTS  OF  CONGRESS 


85 


purpose,  or  at  her  return  from  such  voyage  to  the  United  States,  shall 
be  wholly  forfeited,  and  may  be  seized  and  condemned  in  any  court 
of  the  United  States,  having  competent  jurisdiction. 

Sec.  2.  And  be  it  further  enacted,  That  excepting  for  foreign  ships 
or  vessels  owned,  hired,  and  employed  by  persons  permanently  re- 
siding in  Europe,  and  commanded  and  wholly  navigated  by  foreigners, 
no  clearance  for  a  foreign  voyage  shall  be  granted  to  any  ship  or 
vessel  whatever,  until  the  owner  or  the  employer  for  the  voyage  or 
if  not  resident  within  the  distrirt  where  the  clearance  shall  be  required, 
his  factor  or  agent,  with  the  master  and  one  or  more  sufficient  surety 
or  sureties,  to  the  satisfaction  of  the  collector  of  the  district,  shall  give 
b-jnd  to  the  United  States,  such  owner,  employer,  or  factor,  with  the 
master,  in  a  sum  equal  to  the  value  of  the  vessel,  and  of  one-third 
of  her  cargo;  and  such  surety  or  sureties  in  a  like  sum,  when  it  shall 
not  exceed  ten  thousand  dollars;  and  if  it  shall  exceed,  then  in  that 
sum,  with  condition  that  the  ship  or  vessel  for  which  a  clearance  shall 
be  required,  is  actually  destined,  and  shall  proceed  to  some  port  or 
place  without  the  limits  or  jurisdiction  of  the  French  Republic,  or 
any  of  the  dependencies  thereof,  and  during  the  intended  voyage  shall 
not  be  voluntarily  carried,  or  permitted  to  proceed  or  sold,  entrusted 
or  transferred,  with  the  purpose  that  she  may  pro'  ^ed  whether  di- 
rectly, or  from  any  intermediate  port  or  place,  to  any  port  or  place 
within  the  territories  of  that  Republic,  or  any  of  the  dependencies 
thereof:  and  shall  not,  at  any  such  port  or  place,  voluntarily  deliver 
or  unlade  any  part  of  such  cargo;  and  if  compelled  by  distress  of 
weather,  or  taken  by  force  into  any  such  port  or  place,  will  not  there 
receive  on  board  of  such  ship  or  vessel  any  goods,  produce,  or  mer- 
chandise, other  than  necessary  sea  stores ;  and  generally,  that  such 
ship  or  vessel  shall  not  be  employed  in  any  traffic  or  commerce  with  or 
for  any  person  resident  within  the  territory  of  the  French  Republic. 
or  any  of  the  dependencies  thereof. 

Sec,  3.  Proz-ided,  and  be  it  further  enacted.  That  when  any  ship  or 
\esse!  which  shall  obtain  a  clearance  for  a  foreign  'oyage.  after  ?. 
bond  shall  be  given  as  aforesaid,  sh.ill  he  comr-'lied  by  distress  of 
weather,  or  other  casualty  endangering  the  safety  of  such  ship  or  ves- 
sel, or  of  the  mariners  on  board  the  same,  or  shall  \>e  taken  by  anv 
armed  vessel,  or  other  superior  force,  into  any  port  or  place  within 
the  territories  of  the  French  Republic,  .r  any  of  the  dependencies 
thereof,  and  shall  there  necessarily  unlade  and  deliver,  or  shall  be  de- 


86 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


prived  of  any  cargo  then  on  board,  then,  and  in  such  case,  the  master 
or  other  person  having  charge  of  such  ship  or  vessel,  may  receive  com- 
pensation or  payment  in  bills  of  exchange,  or  in  money  or  bullion,  for 
such  cargo,  but  not  otherwise,  and  shall  not  be  understood  thereby  to 
contravene  this  law,  or  to  incure  a  forfeiture  of  the  said  bond. 

Sec.  4.  And  be  it  further  enacted.  That  no  ship  or  vessel  coming 
from  any  port  or  place  within  the  territories  of  the  French  Republic, 
or  any  of  the  dependencies  thereof,  whether  with  or  without  a  cargo, 
or  from  any  other  port  or  place,  with  a  cargo  on  board  obtained  for, 
or  laden  on  board  of  such  vessel  at  any  port  or  place  within  the  said 
territories  or  dependencies,  which  shall  arrive  within  the  limits  of  the 
United  States  after  the  said  second  day  of  March  next,  shall  be  ad- 
mitted to  an  entry  with  the  collector  of  any  district;  and  each  and 
every  such  ship  or  vessel  which  shall  arrive  as  aforesaid,  having  on 
board  any  goods,  wares  or  merchandise,  destined  to  be  delivered  within 
the  United  States,  contrary  to  the  intent  of  this  act,  or  which  shall 
have  otherwise  contravened  the  same,  together  with  the  cargo  which 
shall  be  found  on  board,  shall  be  forfeited,  and  may  be  seized  and 
condemned  in  any  court  of  the  United  States  having  competent  juris- 
diction :  Provided,  that  nothing  herein  contained  shall  be  construed  to 
prohibit  the  entry  of  any  vessel  having  a  passport  granted  under  the 
authority  of  the  French  Republic,  and  solely  employed  for  purposes 
of  political  or  national  intercourse  with  the  government  of  the  United 
States,  and  not  in  any  commercial  intercourse,  and  which  shall  be  re- 
ceived, and  permitted  by  the  President  of  the  United  States  to  remain 
within  the  same:  And  proz'ided  also,  that  until  the  first  day  of  August 
next,  and  no  longer,  any  ship  or  vessel,  wholly  owned  or  employed  by 
a  foreigner,  other  than  any  person  resident  in  France,  or  in  any  of  the 
dependencies  of  the  French  Republic,  and  which  coming  therefrom 
shall  be  destined  to  the  United  States,  and  shall  arrive  within  the  same, 
not  having  otherwise  contravened  this  act.  shall  be  required  and  per- 
mitted to  depart  therefrom,  and  in  case  she  shall  accordingly  de- 
part, without  any  unreasonable  delay,  and  without  delivery,  or  at- 
tempting to  deliver,  any  cargo  or  lading  within  the  United  States,  such 
ship  or  vessel,  or  any  cargo  which  may  be  on  board  the  same,  shall  not 
be  liable  to  the  forfeiture  aforesaid. 

Sec.  5.  And  be  it  further  enacted.  That  if  anv  ship  or  vessel,  coming 
from  any  port  or  place  within  the  territories  of  the  French  Republic, 


ACTS  OF  CONGRESS 


87 


or  any  of  the  dependencies  thereof,  or  with  any  cargo  there  obtained 
on  board,  but  not  destined  to  any  port  or  place  within  the  United 
States,  shall  be  compelled  by  distress  of  weather,  or  other  necessity, 
to  put  into  any  port  or  place  within  the  limits  of  the  United  States, 
such  ship  or  vessel  shall  be  there  hospitably  received  in  the  manner 
prescribed  by  the  act,  intituled  "An  act  to  regulate  the  collection  of 
duties  on  imports  and  tonnage" ;  and  shall  be  permitted  to  make  such 
repairs,  and  to  obtain  such  supplies  as  shall  be  necessary  to  enable  her 
to  proceed  according  to  her  destination ;  and  such  repairs  and  supplies 
being  obtained,  shall  be  thereafter  required  and  permitted  to  depart. 
But  if  such  ship  or  vessel  shall  not  conform  to  the  regulations  pre- 
scribed by  the  act  last  mentioned,  or  shall  unlade  any  part  of  her  cargo, 
or  shall  take  on  board  any  cargo  or  supplies  whatever,  without  the 
permit  of  the  collector  of  the  district  previously  obtained  therefor,  or 
shall  refuse,  or  unreasonably  delay  to  depart  from  and  out  of  the 
United  States,  after  having  received  a  written  notice  to  depart,  which 
such  collector  may,  and  shall  give,  as  soon  as  such  ship  or  vessel  shall  be 
fit  for  sea ;  or  having  departed  shall  return  to  the  United  States,  not 
being  compelled  thereto  by  further  distress  or  necessity,  in  each  and 
every  such  case,  such  ship  or  vessel  and  her  cargo  shall  be  forfeited 
and  may  be  seized,  and  condemned  in  any  court  of  the  United  States 
having  competent  jurisdiction. 

Sec.  6  And  be  it  further  enacted.  That  at  any  time  after  the  passing 
of  this  act,  it  shall  be  lawful  for  the  President  of  the  United  States, 
by  his  order  to  remit  and  discontmue  for  the  time  being,  whenever  he 
shall  deem  it  expedient,  and  for  the  interest  of  the  United  States,  all 
or  any  of  the  restraints  and  prohibitions  imposed  by  this  act,  in  re- 
spect to  the  territories  of  the  French  Republic,  or  to  any  island,  port 
or  place  belonging  to  the  said  Republic,  with  which  in  his  opinion  a 
commercial  intercourse  may  be  safely  renewed;  and  also  it  shall  be 
lawful  for  the  President  of  the  United  States,  whenever  he  shall 
afterwards  deem  it  expedient,  to  revoke  such  order,  and  hereby  to 
re-establish  such  restraints  and  prohibitions.  And  the  President  of  the 
United  States  shall  be.  and  he  is  hereby  authorized,  to  make  procla- 
mation thereof  accordingly. 

Sec.  7.  And  be  it  further  enacted,  That  the  whole  of  the  island  of 
Hispaniola  shall  for  the  purposes  of  this  act  be  considered  as  a  de- 
pendency of  the  French  Republic:  Pro-.-ided,  that  nothing  herein 
contained  shall  be  deemed  to  repeal  or  annul  in  any  part,  the  order  or 


88 


THE  CONTROVERSY  Wn  «  FRANCE,  1797-1800 


proclamation  of  the  President  of  the  United  Sutes,  heretofore  is- 
sued for  permitting  commercial  intercourse  with  certain  ports  of  that 

island. 

Sec.  8.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  to  give  instructions  to  the  public  armed 
vessels  of  the  United  States,  to  stop  and  examine  any  ship  or  vessel  of 
the  United  States  on  the  high  sea,  which  there  may  be  reason  to  sus- 
pect to  be  engaged  in  any  traffic  or  commerce  contrary  to  this  act,  and 
if  upon  examination,  it  shall  appear  that  such  ship  or  vessel  is  bound 
or  sailing  to,  or  from  any  port  or  place,  contrary  to  the  true  intent 
and  meaning  of  this  act,  it  shall  be  the  duty  of  the  commander  of 
such  public  armed  vessel,  to  seize  every  ship  or  vessel  engaged  in 
such  illicit  commerce,  and  send  the  same  to  the  nearest  convenient  port 
of  the  United  States,  to  be  there  prosecuted  in  due  course  of  law,  and 
held  liable  to  the  penalties  and  forfeitures  provided  by  this  act. 

Sec.  9.  And  be  it  further  enacted,  That  all  penalties  and  forfeitures 
incurred  by  force  of  this  act,  shall,  and  may  be  examined,  mitigated 
and  remitted  in  like  manner,  and  under  the  like  conditions,  regulations 
and  restrictions,  as  are  prescribed,  authorized  and  directed  by  the  act, 
intituled  "An  act  to  provide  for  mitigating,  or  remitting,  the  for- 
feitures, penalties  and  disabilities  accruing  in  certain  cases  therein 
mentioned" ;  and  all  penalties  and  forfeitures,  which  may  be  recovered 
in  pursuance  of  this  act  in  consequence  of  any  seizure  made  by  the 
commander  of  any  public  armed  vessel  of  the  United  States,  shall  be 
distributed  according  to  the  niles  prescribed  by  the  act.  intituled  "An 
act  for  the  government  of  the  nav^  of  the  United  States" ;  and  all  other 
penalties  arising  under  this  act,  and  which  may  be  recovered,  shall  be 
distributed  and  accounted  for  in  the  manner  prescribed  by  the  act. 
intituled  "An  act  to  regulate  the  collection  of  duties  on  imports  and 
tonnage." 

Sec.  10.  And  he  it  further  enacted.  That  nothing  contained  in  this 
act  shall  extend  to  any  ship  or  vessel  to  which  the  President  of  the 
United  States  shall  grant  a  permission  to  enter  and  clear ;  provided  such 
ship  or  vessel  shall  be  solely  employed,  pursuant  to  such  j^ermission,  for 
purposes  of  national  intercourse ;  and  shall  not  be  permitted  to  pro- 
ceed with,  or  to  bring  to  the  United  States  any  cargo  or  lading  what- 
ever other  than  necessary  sea-stores. 

Sec.  U.  And  be  it  further  enacted,  That  the  act,  intituled  "An 
act  further  to  suspend  the  commercial  intercourse  between  the  United 


ACTS  OF  CON'GRE; 


89 


States  and  France,  and  the  dependencies  thereof,"  shall  be,  and  is 
hereby  continued  and  shall  l>e  taken  to  be  in  force  in  respect  to  all 
offences,  which  shall  have  been  committed  against  the  same,  before  the 
expiration  thereof ;  and  to  the  intent  that  all  seizures,  forfeitures  and 
penalties  arising  upon  such  offences,  may  be  had,  sued  for,  prosecuted 
and  recovered,  any  limitation  of  the  said  act  to  the  contrary  hereof 
notwithstanding. 

Sec.  12.  And  be  it  further  enacted,  That  this  act  shall  be  and  remain 
in  force  until  the  third  day  of  Nfarch.  one  thousand  eight  hundred 
and  one:  Proz-ided,  hotvever,  the  expiration  thereof  shall  not  prevent 
or  defeat  any  seizure,  or  prosecution  for  a  forfeiture  incurred  under 
this  act.  and  during  the  continuance  thereof. 

Approved,  February  27,  1800. 


An  Act  proz-iding  f,yr  Salvage  in  cases  of  Recapture' 

Sectio.v  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled.  That 
when  any  vessel  other  than  a  vessel  of  war  or  privateer,  or  when  anv 
goods  which  shall  hereafter  be  taken  as  prize  by  anv  vessel,  acting 
under  authority  from  the  government  of  the  United  States,  shall  ap- 
pear to  have  before  belonged  to  any  person  or  persons,  resident  within 
or  under  the  protection  of  the  United  States,  and  to  have  been  taken 
by  an  enemy  of  the  United  States,  or  under  authority,  or  pretence  of 
authority,  from  any  prince,  government  or  state,  a-ainst  which  the 
United  States  have  authorized,  or  shall  authorize,  defence  or  reprisal, 
such  vessel  or  goods  not  havin^  been  condemned  as  prize  by  compe- 
tent authority  before  the  recapture  thereof,  the  same  shall  be'  restored 
to  the  former  owner  or  owners  thereof,  he  or  they  paying  for  and  in 
lieu  of  salvage,  if  retak-n  by  a  public  vessel  of  the' United  States, 
one  ei-hth  part,  and  if  retaken  by  a  private  vessel  of  the  United  States. 
one  sixth  pan.  of  the  true  value  of  the  vessel  r.r  c.jods  so  to  be  re- 
stored, allowing  and  excepting  all  imports  and  public  duties  to  which 
the  same  may  be  liabk.  And  if  the  vessel  so  retaken  shall  appear  to 
have  been  set  forth  and  armed  as  a  vessel  - :  war.  before  such  capture 

'  Statutes  it  Large,  vol.  II.  p.  16. 


90  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

or  afterwards,  and  before  the  retaking  tliereof  as  aforesaid,  the 
former  owner  or  owners,  on  the  restoration  thereof,  shall  be  adjudged 
to  pay  for  and  in  lieu  of  salvage,  one  moiety  of  the  true  value  of  such 
vessel  of  war,  or  privateer. 

Sec.  2.  And  be  it  further  enacted.  That  when  any  vessel  or  goods, 
which  shall  hereafter  be  taken  as  prize,  by  any  vessel  acting  under 
authority  from  the  government  of  the  United  States,  shall  appear  to 
have  before  belonged  to  the  United  State.'^  and  to  have  been  taken  by 
an  enemy  of  the  United  States,  or  under  authority,  or  pretence  of 
authority  from  any  prince,  government  or  state,  against   which  the 
United   States   have   authorized,   or   shall   authorize,   defence   or   re- 
prisals, such  public  vessel  not  having  been  condenmed  as  prize  by 
competent  authority  before  the  recapture  thereof,  the  same  shall  be 
restored  to  the  United  States.     And  for  and  in  lieu  of  salvage,  there 
shall  be  paid  from  the  treasury  of  the  United  States,  pursuant  to  the 
final  decree  which  shall  be  made  in  such  case  by  any  court  of  the 
United  States,  having  competent  jurisdiction  thereof,  to  the  parties 
who  shall  be  thereby  entitled  to  receive  the  same,  for  the  recapture 
as  aforesaid,  of  an  unarmed  vessel,  or  any  goods  therein,  oi.e  sixth 
part  of  the  true  value  thereof,  when  made  by  a  private  vessel  of  the 
United  States,  and  one  twelfth  part  of  such  value  when  the  recapture 
shall  be  made  by  a  public  armed  vessel  of  the  United  States ;  and  for 
the  recapture  as  aforesaid  of  a  public  armed  vessel,  or  any  goods 
therein,  one  moiety  of  the  true  value  thereof,  when  made  by  a  private 
vessel  of  the  United  States,  and  one  fourth  part  of  such  value,  when 
such  recapture  shall  be  made  by  a  public  armed  vessel  of  the  United 

States. 

Sec.  3.  And  be  it  further  enacted,  That  when  any  vessel  or  goods 
which  shall  be  taken  as  prize,  as  aforesaid,  shall  appear  to  have  be- 
fore belonged  to  any  person  or  persons  permanently  resident  within 
the  territory,  and  under  the  protection  of  any  foreign  prince,  govern- 
ment or  state,  in  amity  with  the  United  States,  and  to  have  been  taken 
by  an  enemy  of  the  United  States,  or  by  authority  or  pretence  of 
authority  from  any  prince,  government  or  state,  against  which  the 
United  States  have  authorized,  or  shall  authorize,  defence  or  re- 
prisals, then  such  vessel  or  goods  shall  be  adjudged  to  be  restored  to 
the  former  owner  or  owners  thereof,  he  or  they  paying  for  and  in  lieu 
of  salvage,  such  proportion  of  the  true  value  of  the  vessel  or  goods 


ACTS  OF  CONGRF..- 


91 


30  to  b«  restored,  as  by  the  law  or  usa^e  of  «uch  prmce.  government  or 
stare,  within  whose  territon,-  ^uch  I'ortr.er  o-.vner  or  owners  shall  be  so 
resident,  shall  be  required  on  the  restoration  of  any  vessel  or  -^ds 
of  a  citizen  of  the  United  States,  under  like  circumsrances  of  recap- 
ture, made  by  the  authority  of  such  foreign  prince,  government  or 
state :  and  where  no  such  law  or  usage  shall  be  known,  the  same 
salvage  shall  be  allowed  a;  is  provided  by  the  first  section  of  this  act : 
Prnided.  that  no  such  ve^-el  or  goods  -hal!  be  adjudged  to  be  re- 
stored to  such  former  owner  or  owner-,  in  any  case  where  the  same 
shall  have  been,  before  the  recapture  thereof,  condem.ned  as  prize  by 
competent  authority,  nor  in  any  case  where  by  the  law  or  usage  .f  the 
prince,  government,  or  st^te.  within  whose  territory  such  former 
owner  or  owners  shall  be  resident  as  af-.resaid.  the  vessel  or  goods  of 
a  citizen  of  the  United  States,  under  like  circum.stances  of  recapture. 
would  not  be  restored  to  such  citizen  of  the  United  .States :  Prrjidcd 
als).  -hat  nothing  herein  shall  be  construed  to  contravene  or  alter  the 
terms  of  restoration  in  cases  of  recapture,  which  are  or  shall  be  agreed 
on  in  any  treaty  between  the  United  State-  and  any  foreign  prince. 
government  or  state. 

^Ec.  4.  And  be  it  furtker  enacted.  That  all  sum.s  of  money  which 
may  be  paid  for  salvage,  as  aforesaid,  when  accruing  to  any  public 
armed  vessel,  shall  be  divided  to  and  a-  ong  the  commanders,  officers 
and  crew  thereof,  in  such  proportions  a-  re  or  may  be  provided  bv  law. 
respecting  the  distribution  of  prize  money:  and  when  accruing  to  anv 
private  armed  vessel,  shall  be  distributed  to  and  among  the  owners 
and  company  concerned  in  such  recapture,  according  to  their  ajree- 
ments,  if  any  such  there  be ;  and  in  case  there  be  no  such  agreement, 
then  to  and  among  such  persons,  and  in  such  proportions,  as  the 
court  having  jurisdiction  thereof  shall  appoint. 

Sec.  5.  And  be  if  further  enacted.  That  such  part-  of  ,-iv  ac's  of 
Congress  of  the  United  States,  as  respect  the  falvag-  •  '  -  illo'.v  -n 
ca-es  of   recapture.  sh.all  be.  and  are  hereby  — i^'-a:-  .      .xcc  xu 

cases  of  recapture  made  before  the  passir.,-  of  :h:s  act 

.\PPR0VED.  March  3.  180Ci. 


•'i'/ 

^ 

S:-^ 


92 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


An  Act  to  continue  in  force  the  act  intituled  "An  act  to  authorise  the 
defence  of  the  merchant  vessels  of  the  United  States  against  French 
depredations."^ 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  act  passed 
on  the  twenty-fifth  day  of  June,  one  thousand  seven  hundred  and 
ninety-eight,  intituled  "An  act  to  authorize  the  defence  of  the  merchant 
vessels  of  the  United  States  against  French  depredations,"  excepting 
such  parts  of  the  said  act  as  relate  io  salvage  in  cases  of  recapture, 
shall  continue  and  be  in  force  for  and  during  the  term  of  one  year, 
and  from  thence  to  the  end  of  the  next  session  of  Congress  there- 
after, and  no  longer. 

Approved,  April  22.  1800. 


An  act  to  provide  for  the  ascertainment  of  claitns  of  American  citizens 
for  spoliations  committed  by  the  F~ench  prior  to  the  thirty-first  day 
of  July,  eighteen  hundred  and  ow  .- 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  Avtcrica  in  Congress  assembled.  That  such  citizens 
of  the  United  States,  or  their  lega'  representatives,  as  had  valid  claims 
to  indemnity  upon  the  French  Government  arising  out  of  illegal  cap- 
tures, detentions,  seizures,  condenmations,  and  confiscations  prior  to 
the  ratification  of  the  convention  between  the  United  States  and  the 
French  Republic  concluded  on  the  thirtieth  day  of  September,  eighteen 
hundred,  the  ratifications  of  which  were  exchanged  on  the  thirty-first 
day  of  July  following,  may  apply  by  petition  to  the  Court  of  Claims, 
within  two  years  from  the  passage  of  this  act,  as  hereinafter  provided : 
Provided,  That  the  provisions  of  this  act  shall  not  extend  to  such 
claims  as  were  embraced  in  the  convention  between  the  United  States 
and  the  French  Republic  concluded  on  the  thirtieth  day  of  April, 
eigliteen  hundred  and  three;  nor  to  such  claims  growing  out  of  the 
acts  of  France  as  were  allowed  and  paid,  in  whole  or  in  part,  under 
the  provisions  of  the  treaty  between  the  United  States  and  Spain  con- 


'  Statutes  at  LarRe.  vol.  II.  p.  39. 
»  Statutes  at  Large,  vol.  XX ill,  p. 


28.1. 


«L^ 


ACTS  OF     ONGRE- 


eluded  on  the  twenty-second  day  of  February,  eighteen  hundred  and 
nineteen;  nor  to  such  claims  a?  were  allowed,  in  whole  or  in  part, 
under  the  pr^jvi^ioni  of  the  treaty  between  the  United  States  and 
France  concluded  on  the  fourth  day  of  July,  eighteen  hundred  and 
thirty -one. 

Sec.  2.  That  the  court  is  hereby  authorized  to  make  all  needful 
rules  and  regulations,  not  contravening  the  laws  of  the  land  or  the 
provisions  of  this  act,  for  executing  the  provisions  hereof. 

Sec.  3.  That  the  court  shall  examine  and  determine  the  validity  and 
amount  of  all  the  claims  included  within  the  description  above  men- 
tioned, together  with  their  present  ownership,  and,  if  by  assignee,  the 
date  of  the  assignment,  with  the  consideration  paid  therefor:  Pn-^.ided. 
That  in  the  course  of  vheir  proceedings  they  shall  receive  all  suitable 
testimony  on  oath  or  affirmation,  and  all  other  proper  evidence,  his- 
torical and  documentary,  concerning  the  same;  and  they  shall  decide 
upon  the  validity  of  said  claims  according  to  the  rules  of  law,  munici- 
pal and  international,  and  the  treaties  of  the  United  States  applicable 
to  the  same,  and  shall  report  all  such  conclusions  of  fact  and  law  as 
in  their  judgment  riay  affect  the  liability  of  the  United  States  therefor. 

Sec.  4.  That  the  court  shall  cause  notice  of  all  petitions  presented 
under  this  act  to  be  served  on  the  Attorney-General  of  the  United 
States,  who  shall  be  authorized,  by  himself  or  his  assistant,  to  examine 
witnesses,  to  cause  testimony  to  be  taken,  to  have  access  to  all  testi- 
mony taken  under  this  act.  and  to  be  heard  by  the  court.  He  shall 
resist  all  claims  presented  under  this  act  by  all  proper  legal  defenses. 

Sec.  5.  That  it  shall  be  the  duty  of  the  Secretary  of  State  to  pro- 
cure, as  soon  as  possible  after  the  passage  of  this  act.  throu;^h  the 
American  minister  at  Paris  or  otherwise,  all  such  evidence  and  docu- 
ment? relating  to  the  ;!aims  above  mentioned  as  can  be  obtained  from 
abror.d :  which,  together  with  the  like  evidence  and  di  cuments  on  file 
in  the  Department  of  State,  or  which  may  be  filed  in  the  Department. 
may  be  used  btfore  the  court  by  the  claimants  interested  therein,  or 
by  the  United  States,  but  the  same  shall  not  be  removed  from  the  files 
of  the  court ;  and  after  the  hearings  are  closed  the  record  of  the  pro- 
ceedings of  the  court  and  the  documents  produced  before  them  shall 
be  deposited  in  the  Department  of  State. 

Sec.  6.  That  on  the  first  Monday  of  December  in  each  year  the 
court  shall  report  to  Congress,  for  final  action,  the  facts  found  by  it, 
and  its  conclusions  in  all  cases  which  it  has  disposed  of  and  not  pre- 


li 


94 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


viously  reported.  Such  finding  and  report  of  the  court  shall  be  taken 
to  be  merely  advisory  as  to  the  law  and  facts  found,  and  shall  not  con- 
clude either  the  claimant  or  Congress ;  and  all  claims  not  finally  pre- 
sented to  said  court  within  the  period  of  two  years  limited  by  this  act 
shall  be  forever  barred;  and  nothing  in  this  act  shall  be  construed  as 
committing  the  United  States  to  the  payment  of  any  such  claims. 
Approved,  January  20th,  1885. 


PI 


Proclamations 

Proclamation  of  June  26,  179^ 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF 
AMERICA 

A  Proclamation 

Whereas  by  an  act  of  the  Congress  of  the  United  States  passed  the 
9th  day  of  February  last,  entitled  "An  act  further  to  suspend  the  com- 
mercial intercourse  between  the  United  States  and  France  and  the 
f'fpendencies  thereof,"  it  is  provided  that  at  any  time  after  the  passing 
ot  this  act  it  shall  be  lawful  for  the  President  of  the  United  States,  if 
he  shall  deem  it  expedient  and  consistent  with  the  interests  of  the 
United  States,  by  his  order  to  remit  and  discontinue  for  the  time  being 
the  restraints  and  prohibitions  by  the  said  act  imposed,  either  with  re- 
spect to  the  French  Republic  or  to  any  island,  port,  or  place  belonging 
to  the  said  Republic  with  which  a  commercial  intercourse  may  safely 
be  renewed,  and  also  to  revoke  such  order  whenever,  in  his  opinion,  the 
interest  of  the  United  States  shall  require;  and  he  is  authorized  to 
make  proclamation  thereof  accordingly ;  and 

Whereas  the  arrangements  which  have  been  made  at  St.  Domingo 
for  the  safety  of  the  commerce  of  the  United  States  and  for  the  ad- 
mission of  American  vessels  into  certain  ports  of  that  island  do,  in  my 
opinion,  render  it  expedient  and  for  the  interest  of  the  United  States 
to  renew  a  commercial  intercourse  with  such  ports : 

Therefore  I,  John  Adams,  President  of  the  United  States,  by  virtue 
of  the  powers  vested  in  me  by  the  above-recited  act,  do  hereby  remit 
and  discontinue  the  restraints  and  prohibitions  therein  contained  within 
the  liiniis  and  under  the  regulations  here  following,  to  w  it : 

1.  It  shall  be  lawful  for  vessels  which  have  departed  or  may  depart 
from  the  United  States  to  enter  the  i^orts  of  Cape  Frangois  and  Port 
Republieain.  formerly  called  Port-au-Princc,  in  the  said  island  of  St. 
Domingo,  on  and  after  the  1st  day  of  August  next. 

2.  No  vessel  shall  be  cleared  for  any  other  port  in  St.  Domingo  than 
Cape  Franijois  and  Port  Republieain. 

'  Richardson.  Mes»g«s.  vol.  I,  p.  288. 


96 


THE  CONTROVERSY  WITH  FRANCE,  1797-1800 


?Si 


3.  It  shall  be  lawful  for  vessels  which  shall  enter  the  said  ports  of 
Cape  Francois  and  Port  Republicain  after  the  31st  day  of  July  next  to 
depart  from  thence  to  any  other  port  in  said  island  between  Monte 
Christi  on  the  north  and  Petit  Goave  on  the  west ;  provided  it  be  done 
with  the  consent  of  the  Government  of  St.  Domingo  and  pursuant  to 
certificates  or  passports  expressing  such  consent,  signed  by  the  consul- 
general  of  the  United  States  or  consul  residing  at  the  port  of  departure. 

4.  All  vessels  sailing  in  contravention  of  these  regulations  will  be 
out  of  the  protection  of  the  United  States  and  be,  moreover,  liable  to 
capture,  seizure,  and  confiscation. 

Given  under  my  hand  and  the  seal  of  the  United  States,  at  Philadel- 
phia, the  26th  day  of  June,  A.  D.  1799,  and  of  the  Independence  of 
the  said  States  the  twenty-third. 

(Seal.)  John  Adams. 

By  the  President : 

Timothy  Pickering, 
Secretary  of  State. 


Proclamation  of  May  9,  1800^ 

PROCLAMATION 

May  9,  1800. 
Whereas  by  an  act  of  Congress  of  the  United  States  passed  the  27th 
day  of  Februar)'  last,  entitled  "An  act  further  to  suspend  the  commer- 
cial intercourse  betwen  the  United  States  and  France  and  the  dependen- 
cies thereof,"  it  is  enacted  that  at  any  time  after  the  passing  of  the  said 
act  it  shall  be  lawful  for  the  President  of  the  United  States,  by  his 
order,  to  remit  and  discontinue  for  the  time  being,  whenever  he  shall 
deem  it  expedient  and  for  the  interest  of  the  United  States,  all  or  any 
of  the  restraints  and  prohibitions  imposed  by  the  said  act  in  respect  to 
the  territories  of  the  French  Republic,  or  to  any  island,  port,  or  place 
belonging  to  the  said  Republic  with  which,  in  his  opinion,  a  commercial 
intercourse  may  be  safely  renewed,  and  to  make  proclamation  thereof 
accordingly ;  and  it  is  also  thereby  further  enacted  that  the  whole  of  the 
island  of  Hispaniola  shall,  for  the  purposes  of  the  said  act,  be  con- 
sidered as  a  dependence  of  the  French  Republic  ;  and 


'Richardson,  Mtrssageii,  vol.  I,  p.  .V12. 


PROCLAMATIONS 


97 


Whereas  the  circumstances  of  certain  ports  and  places  of  the  said 
island  not  comprised  in  the  proclamation  of  the  26th  day  of  June,  1799, 
are  such  that  I  deem  it  expedient  and  for  the  interest  of  the  United 
States  to  remit  and  discontinue  the  restraints  and  prohibitions  imposed 
by  the  said  act  in  respect  to  those  ports  and  places  in  order  that  a 
commercial  intercourse  with  the  same  may  be  renewed : 

Therefore  I,  John  Adams,  President  of  the  United  States,  by  virtue 
of  the  powers  vested  in  me  as  aforesaid,  do  hereby  remit  and  discon- 
tmue  the  restraints  and  prohibitions  imposed  by  the  act  aforesaid  in 
respect  to  all  the  ports  and  places  in  the  said  island  of  Hispaniola  from 
Monte  Christi  on  the  north,  round  by  the  eastern  end  thereof  as  far  as 
the  port  of  Jacmel  on  the  south,  inclusively.  And  it  shall  henceforth 
be  lawful  for  vessels  of  the  United  States  to  enter  and  trade  at  any 
of  the  said  ports  and  places,  provided  it  be  done  with  the  consent  of  the 
Government  of  St.  Domingo.  And  for  this  purpose  it  is  hereby  re- 
quired that  such  vessels  first  enter  the  port  of  Cape  Fran(;ois  or  Port 
Republicain,  in  the  said  island,  and  there  obtain  the  passports  of  the 
said  Government,  which  shall  also  be  signed  by  the  consul-general  or 
consul  of  the  United  States  resding  at  Cape  Francois  or  Port  Repub- 
licam,  permitting  such  vessel  to  go  thence  to  the  other  ports  and 
places  of  the  said  island  hereinbefore  mentioned  and  described.  Of  all 
which  the  collectors  of  the  customs  and  all  other  officers  and  citizens  of 
the  United  States  are  to  take  due  notice  and  govern  themselves. 
In  testimony,  etc. 

John  Adams. 


Proclamation  of  September  6,  i8oo^ 

BY  JOHN  ADAMS,  PRESIDENT  OF  THE  UNITED  ST\TES 

OF  AMERICA 

A  Proclamation 

Whereas  by  an  act  of  the  Congress  of  the  United  States  passed  on 
the  27th  day  of  February  last,  entitled  "An  act  further  to  suspend  the 
commercial  intercourse  between  the  United  States  and  France  and  the 
dependencies  thereof,'  it  is  enacted  -that  at  any  time  after  the  pass- 

'  Richardson,  Messages,  vol.  I,  p.  304. 


K  1 


98 


THE  CONTROVERSY  WITH  FRANCE.  1797-1800 


ing  of  the  said  act  it  shall  be  lawful  for  the  President  of  the  United 
States,  by  his  order,  to  remit  and  discontinue  for  the  time  being, 
whenever  he  shall  deem  it  expedient  and  for  the  interest  of  the  United 
States,  all  or  any  of  the  restraints  and  prohibitions  imposed  by  the 
said  act  in  respect  to  the  territories  of  the  French  Republic,  or  to  any 
island,  port,  or  place  belonging  to  said  Republic  with  which,  in  his 
opinion,  a  commercial  intercourse  may  be  safely  renewed,  and  to 
make  •  ^clamation  thereof  accordingly ;"  and  it  is  also  thereby  further 
enacted  h.  ihe  whole  of  the  island  of  Hispaniola  shall,  for  the  pur- 
poses of  the  said  act,  be  considered  as  a  dependence  of  the  French 
Republic ;  and 

Whereas  the  circumstances  of  the  said  island  are  such  that,  in  my 
opinion,  a  commercial  intercourse  may  safely  be  renewed  with  every 
part  thereof,  under  the  limitations  and  restrictions  hereinafter  men- 
tioned : 

Therefore  I,  John  Adams,  President  of  the  United  States,  by  virtue 
of  the  powers  vested  in  me  as  aforesaid,  do  hereby  remit  and  dis- 
continue the  restraints  and  prohibitions  imposed  by  the  act  aforesaid 
in  respect  to  every  part  of  the  said  island,  so  that  it  shall  be  lawful 
for  vessels  of  the  United  States  to  trade  at  any  of  the  ports  and  places 
thereof,  provided  it  be  done  with  the  consent  of  the  Government  of  St. 
Domingo ;  and  for  this  purpose  it  is  hereby  required  that  such  vessels 
first  clear  for  and  enter  the  port  of  Cape  Fran(;ais  or  Port  Republicain, 
in  the  said  island,  and  there  obtain  the  passports  of  the  said  Govern- 
ment, which  shall  also  be  sij^ed  by  the  consul-general  of  the  United 
States,  or  their  consul  residing  at  Cape  Franqais,  or  their  consul  re- 
siding ;tt  Port  Rcpuhlicain.  permitting  such  vc-^sels  to  go  thence  to  the 
other  ports  and  places  of  the  said  island.  Of  all  which  the  collectors 
of  the  customs  and  all  other  officers  .md  citizens  of  the  United  States 
are  to  takt  due  notice  and  govern  themselves  accordingly. 

Given  under  my  hand  and  the  seal  of  the  United  States  of  America, 
at  the  city  of  Washington,  this  6th  day  of  September,  A.  D.  1800, 
and  of  the  Independence  of  the  said  States  the  twenty-fifth. 

(Seal.)  John  Adams. 

By  the  President : 
J.  Marshall. 

Secretary  of  State. 


PART  ll-OPINIONS  OF  THE  ATTORNEYS  GENERAL  AND 
JUDGMENTS  OF  THE  SUPREME  COURT  AND  COURT 
OF  CLAIMS  OF  THE  UNITED    STATES 


Opinions  of  the  Attorneys  General  of  the  United  States 

TREASON' 

It  «^on  for  a  dtizen  or  other  person  not  commissioned,  within  the  United 
bUtes,  to  abet  France  during  a  maritime  war  with  her. 

„       „     .  Buck  Tavern,  August  zi,  ijgS. 

sir:  Having  taken  into  consideration  the  acts  of  the  Frenoh  Re- 
public relative  to  the  United  States,  and  the  laws  of  Congress  passed 
at  the  last  session,  it  is  my  opinion  that  there  exists  not  only  an  actual 
maritime  war  between  France  and  the  United  States,  but  a  maritime 
war  authorized  by  both  nations.  Consequently,  France  is  our  enemy 
and  to  aid,  assist,  and  abet  that  nation  in  her  maritime  warfare,  will 
be  treason  m  a  citizen  or  any  other  person  within  the  United  States 
not  commissioned  under  France.  But  in  a  French  subject,  commis- 
sioned by  France,  acting  openly  according  to  his  commission,  such 
assistance  will  be  hostility.  The  former  may  be  tried  and  punished 
according  to  our  laws;  the  latter  must  be  treated  according  to  the 
laws  of  war. 

I  have  thought  it  my  duty  to  make  this  communication  in  conse- 
o.uence  of  the  information  you  received  from  Rhode  Island  of  the 
intentions  of  a  Frenchman,  whose  name  I  do  not  now  call  to  mind 
who  is  said  to  be  somewhere  in  this  country,  on  the  business  of  buying 
ships  and  supplies  of  a  military  kind,  for  the  West  Indies.  He  should 
be  apprehended  and  tried  as  a  traitor,  unless  he  has  a  commission,  and 
acts  accDrdiH).  to  it ;  in  which  case  he  should  be  treated  as  an  enemy 
and  confined  as  a  prisoner  of  war. 

I  ha-'.r;  the  honor,  etc.,  etc., 

T,     .     „  Charles  Lee. 

lo  the  Secretary  of  State. 

^^Official  Opinions  of  the  Attorneys  General  of  the  United  States,  vol.  i. 


r 


100 


OPINIONS  OF  THE  ATTORNEYS  GENERAL 


PRIZE  SHIP  AND  CREW— HOW  TO  BE  DISPOSED  OF' 

If  the  prize  be  a  pirate,  the  officers  and  crew  are  to  be  prosecuted  in  the  circuit 
court  of  the  United  States,  without  respect  to  the  nation  to  which  each  indi- 
vidual may  belong. 

If  it  be  regularly  commissioned  as  a  ship-of-war,  the  officers  and  crew  are  to  be 
detained  as  prisoners,  except  such  as  are  citizens  of  the  United  States. 

Citizens  of  the  United  States  who  aid  a  nation  with  whom  we  are  at  wa.  on  the 
high  seas,  against  the  United  States,  are  guilty  of  treason. 

Offenders  against  the  United  Sutes  may  be  arrested,  imprisoned,  or  bailed, 
agreeably  to  the  usual  mode  of  process  in  a  State,  but  can  be  tried  only 
before  the  court  of  the  United  States  having  cognizance  of  the  offense. 

Proceedings  against  the  ship  and  cargo  are  to  be  had  before  the  district  court 
of  the  United  States,  according  to  the  laws  of  Congress  and  the  usage  and 
practice  of  courts  of  admiralty  in  prize  causes. 

Alexandria,  September  so,  1798. 

Sir:  I  take  the  liberty  of  writing  to  you  on  an  interesting  subject, 
concerning  which  you  will  perhaps  hear  from  the  Secretary  of  State. 

According  to  the  account  given  in  the  Norfolk  paper  of  the  15th,  it 
seems  probable  that  the  ship  Nigre,  prize  to  the  Constitution,  will  be 
found  to  be  a  pirate.  If,  after  due  inquiry  (which  you  are  requested 
to  make,  and  for  that  purpose  to  go  to  Norfolk),  it  shall  appear  to 
be  the  case,  the  officers  and  crew,  and  all  others  on  board  having  any 
agency  in  the  ship,  are  to  be  prosecuted  (witnesses  excepted)  in  the 
circuit  court  of  the  United  States  for  the  district  of  Virginia,  accord- 
ing to  the  laws  of  the  United  States,  without  respect  to  the  nation  to 
which  each  individual  may  belong,  whether  he  be  British,  French, 
American,  or  of  any  other  nation. 

On  the  other  hand,  if  the  ship  is  regularly  commissioned  and  au- 
thorized by  France  as  a  public  or  private  ship  of  war,  all  the  officers 
and  crew  are  to  be  detained  as  prisoners,  at  the  expense  of  the  United 
States — except  such  as  are  citizens  of  the  United  States,  or  of  some 
one  of  them,  who  may  be  tried  for  treason  in  adhering  to,  and  aiding, 
the  enemies  of  the  United  States.  After  mature  consideration  of  the 
decrees  of  France,  and  of  the  laws  of  the  United  States,  and  the  con- 
duct of  each  nation  to  the  other,  it  is  my  opinion  that  the  two  nations 
are  in  a  state  of  maritime  war;  and.  consequently,  that  the  citizens 
of  the  United  States  who  aid  and  adhere  to  France  in  acts  of  hostility 
on  the  high  sea,  against  the  United  States  and  their  fellow-citizens,  are 


'  Official   Opinions  of  the   .\Uorneys   General  of  the  United   States,  vol.  i, 
page  85. 


OPINIONS  OF  THE  ATTORNEYS  GENER.\L 


101 


guilty  of  treason.  Perhaps  this  opinion  may  be  found  erroneous ;  if  so 
such  citizens,  if  acquitted  of  treason,  may  b^  indicted  for  feIony,'under 
the  ninth  section  of  the  act  passed  30th  April,  1790,  entitled  '"An  act 
for  the  punishment  of  certain  crimes  against  the  L'nited  States  " 

I  conceive  the  law  of  Virginia,  which  requires  the  examination  be- 
fore a  county  or  corporation  court,  of  criminals  triable  in  the  State 
courts,  does  not  apply  to  criminals  triable  before  the  courts  of  the 
United  States  in  the  Virginia  district.  Upon  this  point,  reference  mav 
be  had  to  the  23d  section  of  the  20th  chapter  of  the  acts  of  Congress 
of  1789.  By  this  section,  an  offender  against  the  United  States  is 
agreeably  to  the  usual  mode  of  process  against  offenders  in  such  State 
where  he  is  found,  to  be  arre.-ted  and  imprisoned,  or  bailed  as  the 
case  may  be,  for  trial  before  the  court  of  the  United  States  having 
cognizance  of  the  offense.  The  arrest  is  to  be  agreeablv  to  the  usual 
mode  of  process  in  the  State;  the  imfrisomnent  or  bailment  is  al=o 
to  be  agreeably  to  the  usual  mode  of  process  in  the  State:  but  the  trial 
is  to  be  only  before  the  court  of  the  United  States  having  cognizance 
of  the  offense.  The  examination  preparator>-  to  the  trial  is  to  be  be- 
fore a  magistrate,  who  is  to  send  to  the  clerk's  office  of  the  court 
copies  of  the  process  and  the  recognizance  of  the  witnesses,  for  their 
appearance  to  testify.  To  admit  a  different  construction  of  this  sec- 
tion, would  be  to  admit  a  different  mode  of  /ri<j/  of  the  same  offense 
against  the  United  States,  in  their  courts,  as  it  might  happen  to  be 
cognizable  m  one  district  or  in  another:  for  the  examination  before 
3  county  or  corporation  court,  according  to  the  law  of  Virginia  is  a 
species  of  trial  that  gives  a  chance  of  acquittal  unknown  in  other 
States.  Besides,  the  text  of  the  Virginia  law  seems  to  be  confined  to 
offenders  amenable  to  the  courts  of  the  State. 

Against  the  ship  and  cargo,  proceedings  are  to  be  had  before  the 
district  court  of  the  United  States  in  Mrginia.  according  to  the  laws 
of  Congress  and  the  usage  and  practice  of  courts  of  admiralty  in  prize 
causes. 

It  will  afford  me  satisfaction  to  receive  from  tou  a  statement  of 
facts  relative  to  this  ship,  and  your  ideas  on  the  matters  of  law  which 
have  been  the  subject  of  these  remarks. 

I  am,  etc.,  etc., 

_,    _  Charles  Lee. 

lo  Thomas  Nelson,  Esq., 

District  Attorney,  U.  S.,  Yorkf(Ki-n.  Virginia. 


Judgments  of  the  Supreme  Court  of  the  United  States 


TALBOT  V.  The  Ship  AMELIA,  SEEMAN,  Claimant' 
Saltfoge 

The  officers  and  crew  of  a  ship  of  war  are  entitled  to  salvage,  for  the  recapture 
of  an  armed  neutral  vessel,  from  a  foreign  belligerent,  by  whom  she  had 
been  matuied  with  a  prize  crew. 

Error  from  the  Circuit  Court  of  New  York.  It  appeared  on  the 
record,  that  Captain  Talbot,  of  the  frigate  Constitution,  having  recap- 
tured the  Amelia,  an  armed  Hamburg  vessel,  which  had  been  captured 
by  a  French  national  corvette,  and  ordered  to  St.  Domingo  for  adjudi- 
cation, brought  her  into  the  port  of  New  York.  A  libel  was,  thereupon, 
filed  in  the  district  court,  by  the  recaptor,  setting  forth  the  facts,  and 
praying  that  the  vessel  and  cargo  might  be  condemned  as  prize;  or 
that  such  other  decree  might  be  pronounced  as  the  court  should  deem 
just  and  proper. 

A  claim  was  filed  by  H.  F.  Seeman,  for  Chapeau  Rouge  &  Co.,  of 
Hamburg,  the  owners,  insisting  that  the  property  had  not  been  changed 
by  the  capture,  and  praying  restitution,  with  damages  and  costs.  The 
District  Judge,  Hobart,  decreed  one-half  of  the  gross  amount  of  sales 
of  ship  and  cargo,  without  deduction  (a  sale  having  been  made  by  con- 
sent), to  be  paid  to  the  recaptors,  in  the  proportions  directed  by  the 
act  of  Congress  for  the  government  of  the  navy ;  and  the  other  half,  de- 
ducting all  costs  and  charges,  to  be  paid  to  the  claimants. 

The  cause  was  brought  by  appeal  before  the  circuit  court,  Wash- 
ington, Justice,  presiding,  who  reversed  the  decree  of  the  district 
court,  so  far  as  it  ordered  payment  of  one-half  of  the  gross  sales  to  the 
recaptors,  "considering  that,  as  the  nation  to  which  the  owners  of  the 
said  ■ihip  and  cargo  belong,  is  in  amity  with  the  French  Republic,  the 
ship  and  cargo  could  not.  consistently  with  the  laws  of  nations,  be  con- 
demned by  the  French,  as  a  lawful  prize  ;  and  that,  therefore,  no  service 
was  rendere<l  by  the  Constitution,  or  by  the  commander,  officers  or 
crew  thereof,  by  the  recapture  aforesaid ;''  and  affirmed  the  rest  of  the 

M  DalLis.  .U:  August  term,  18IX).     Same  case,  1  Cranch,  1.     [Infra,  p.  116.1 


TALBOT  V.  THE   5H:P  Ay£L:.». 


103 


decree.  On  the  decree  of  the  circuit  court,  the  present  wnt  cf  error 
wa;  rnstituted;  and  the  following  staterr-ent  of  fact-  .Tiade  a  part  of 
the  record  by  consent : 


The  foliowing  ca=«  :•  a^ted  upcn  by  the  part:*?,  to  be  annexed 
to  the  wnt  of  errcr  in  this  cau^e.  viz.:  The  ship  .-Jm«'w  iai'.ed 
from  Calojtta.  -in  Een^:.  :n  the  month  of  ApnI.  1799.  icadc':  with 
a  cargo  of  the  pro-luce  and  n-.ar.ufaaure  .f  tha:  cour.tr.-.  consi?-;- 
ing  of  cottor.  iuga.-i  and  dry  goc^s  Li  bales,  bound  to  Ha.~bt:rg 
On  the  6th  of  September,  -.n  the  same  yzi^.  the  iarre  wa?  cap- 
tured, whilst  in  the  pursuit  of  her  ;aid'  vo%-age.  by  the  Fr»nch 
Tiatioiu:  con-ette  La' Ddizente.  L.  I.  EHibc'i;.  cominander.  who 
took  out  her  captain  and  part  of  her  crew,  together  with  most  of 
her  paper;,  and  placed  a  phze-master  and  French  sailors  on  board 
of  her.  ordering  the  pri^e-rnaiter  to  conduct  her  t:.  5t.  Dcm:r^. 
to  be  judged  according  to  the  laws  of  war.  Or.  the  ifth  of  the 
same  mcnth  of  September,  the  United  States  ship  of  war.  the 
Constitut.cn.  contmanded  by  Silas  Talbc-t.  Esquire,  the  hbeilant. 
fei:  m  with,  and  recaptured  the  Amelia,  she  being  then  in  fui:  p.;-s- 
sessicn  of  the  French,  and  pursuing  her  course  for  St.  E)o~:ngo, 
according  tc  the  order?  received  front  the  captain  cf  the  French 
con-ette.  .\t  the  tirre  of  the  recapture,  the  Ameivi  had  eight  iron 
cannon  mounted,  and  eight  woc^ien  gun?,  with  which  she  had  left 
Calcutta,  as  bet; re  stated.  Fr-rm  such  of  the  ship's  paper?  as 
were  found  on  beard,  and  the  testimony  in  the  cause."  the  ship 
Amelia,  and  her  cargo,  appear  tc  have  been  the  propertv  of 
Giapeau  Rouge,  a  citizen  of  Hamburg,  rec^dir^  and  can-.-in?  on 
c-ffimerce  m  that  place.  It  is  concecked.  that  the  Repubh'c  of 
France  and  the  city  of  Hamburg  are  not  in  a  state  of  hr?t:Iitv  to 
each  other,  and  that  Hamburz  is  to  be  considered'  as  neutral' be- 
tween the  present  belligerent  powers.  The  Arr.e.ia.  and  her  cargo, 
having  been  sent  by  Captain  Talbot  t:-  Ne-.v  York,  were  there 
libelled  in  the  distnct  c'urt.  and  such  prc-:eedine-  were  '^ 
upon  had  in  that  court,  and  the  circuit  court  f:r  that  dist 
"•  by  the  writ  of  error  and 


ere- 

ict.  as 


lav  at>pear 


.\LF.X>.NrER   H.\M!LT^V.  C  f 

B   L:vingst-:n,  of  counsel 


in s^l  for 
defendar 


.i-ntitt 


error 


The  cause  was  argued,  on  the  11th.  12th  G.nd  13th  of  August.  1800. 
by  Ingcrscll  and  Lru-^s.  for  the  plaintift  in  error:  and  by  M  /..t--.  and 
DsUaj.  for  the  defendant  in  error.  The  seneri!  points  of  the  discussion 
were  these : 

Ist.  Whether  the  Amelia  could  be  considered,  l:  the  time  of  the  re- 
capusre.  as  a  French  armed  vessel,  within  the  n-eaning  of  the  aa  of 


1(M 


JUDGMENTS  OF  THE  SUPREME  COURT 


Congress,  which  authorizes  the  seizure  of  French  armed  vessels? 
(1  U.  S.  Stat.  572.) 

2d.  Whether  Captain  Talbot  was  authorized  to  make  a  recapture, 
the  Amelia  belonging  to  a  power,  equally  in  amity  with  the  United 
States,  and  with  France  ? 

3.  Whether  on  positive  statute,  or  general  principle?,  a  salvage  was 
due  to  the  recaptors,  for  rescuing  the  Amelia  from  the  French? 

On  the  18th  of  August,  Paterson,  Justice,  stated,  that  it  was  the 
wish  of  the  court  to  postpone  the  cause,  for  further  argument,  before  a 
fuller  bench.  It  was  accordingly,  argued  again,  at  Washington,  in 
August  term.  1801,  by  Ingersoll  and  Bayard  (of  Delaware),  for  the 
plaintiff  in  error;  and  by  M.  Lczy,  J.  T.  Mason  (of  Maryland)  and 
Dallas,  for  the  defendant  in  error.  And  Marshall,  Chief  Justice, 
delivered  the  judgment  of  the  court,  "that  the  decree  of  the  circuit 
court  was  correct,  in  reversing  the  decree  of  the  district  court,  but  not 
correct  in  decreeing  the  restoration  of  the  Amelia,  without  paying  sal- 
vage. This  court,  therefore,  is  of  opinion,  that  the  decree,  so  far  as  the 
restoration  of  the  Amelia  without  salvage  is  ordered,  ought  to  be  re- 
versed: an<i  that  the  Amelia  and  her  cargo  ought  to  be  restored  to  the 
claimant,  on  paying  for  salvage  one-sixth  part  of  the  net  value,  after 
deducting  therefrom  the  charges  which  have  been  incurred."' 


BAS  V.  TINGY,  (THE  ELI Z Ay 
State  of  war. — Salvage 

Every  contention,  by  force,  between  two  nations,  in  external  matters,  under 
authority  of  their  respective  governments,  is  a  public  war. 

If  a  general  war  be  declared,  its  extent  and  operations  are  only  restricted  and 
regulated  by  the  jus  belli,  forming  part  of  the  law  of  nations ;  but  if  a 
partial  war  be  waged,  its  extent  and  operation  depend  on  our  municipal 
laws.    Chase,  J. 

A  belligerent  power  has  a  right,  by  the  laws  of  nations,  to  search  a  neutral 
vessel;  and  upon  suspicion  of  a  violation  of  her  neutral  obligations,  to  seize 
and  carry  her  into  port  for  further  examination.    Ibid. 


>  A  full  report  of  the  arguments,  on  the  first  hearing  of  this  cause,  was  pre- 
pared ;  but  they  are  foimd  so  ably  incorporated  with  the  arguments  on  the 
second  hearing,  in  Mr.  Crancli's  Reports,  that  it  has  been  thought  unnecessary 
to  publish  it  in  this  volume.     1  Cranch,  1.     [Infra,  p.  116.] 

-•  4  Dallas,  37 ;  August  term,  1800. 


■S 


BAS  V.  TI.NGV   (THE  ELIZA; 


105 


An  American  vessel,  captured  by  a  French  privateer,  on  the  31st  March,  \7Vj, 
and  recaptured  by  a  public  armed  American  ship,  on  the  2I-t  ot  April.  l/W. 
was  condemned  to  pay  salvage,  under  the  act  of  Congress  ,i  the  2d  Varch 
XT/). 

In  error  from  the  Circuit  Court  for  the  riistrict  of  Pennsylvania.  On 
the  return  of  the  record,  it  appeared  by  a  case  stated,  that  the  defen- 
dant in  error  had  filed  a  libel  in  the  district  court,  as  commander  of 
the  public  armed  ship,  the  Ganges,  for  himself  and  others,  agamst  tlic 
ship  Eliza.  John  Bas,  master,  her  carg.;,  etc.,  in  which  he  set  forth 
that  the  said  ship  and  cargo  belonged  to  citizens  of  the  United  State- : 
that  they  were  taken  on  the  high  seas,  by  a  French  privateer,  on  the 
31st  of  March,  1799;  and  that  they  were  retaken  by  the  libellant.  o:i 
the  21st  of  April  following,  afier  having  been  above  ninetv-^.x  hours 
in  possession  of  the  captor..  The  lil>el  prayed  for  salvage,  conformable 
to  the  acts  of  Congress;  and  the  facts  being  admitted  by  the  ans\ver 
of  the  respondents,  the  distr-ct  court  decreed  to  the  lil^ell'ants  one-half 
of  the  whole  value  of  ship  and  cargo.  This  decree  was  affirmed  in 
the  circuit  court,  without  argument,  and  by  consent  of  the  partie,,  in 
order  to  expedite  a  final  decision  on  the  present  writ  of  error. 

The  controversy  ii.-olved  a  consideration  of  the  following  sections 
in  two  acts  of  Congress ;  By  an  act  f  the  28th  of  June,  1798  (  1  U.  S. 
Stat.  574,  §  2).  i  is  declared.  "That  whenever  any  vessel  the  propert}- 
of,  or  employe  iny  citizen  of  the  United  States,  or  person  resident 

therein,  or  any  j,  ds  or  effects  belonging  to  any  such  citizen  or  resi- 
dent, shall  be  recaptured  by  any  public  armed  v  ■  the  United 
States,  the  same  shall  be  restored  to  the  former  ou  >wners, 
upon  due  proof,  he  or  they  paying  and  allowing,  as  and  to;  ^Ivage  to 
the  recaptors,  one-eighth  part  of  t!.  value  of  such  vessel,  goods  and 
effects,  free  from  all  deduction  and  expenses." 

By  an  art  of  the  2d  of  March.  1799  a  U.  S.  Stat  716).  it  is  de- 
clared. "That  for  the  ships  or  goods  belonging  to  the  citizens  of  the 
Lnited  States,  or  to  the  citizens  or  subjects  of  any  nation  in  amity 
with  the  United  States,  if  retaken  from  the  enemy  within  twenty- four 
hours,  the  owners  are  to  allow  one-eighth  part  of  the  wh  .e  value  for 
salvage,  etc.;  and  if  above  ninety-six  hours,  one-half,  a:  of  which  is 
to  be  paid,  without  any  deduction  whatsoever,  etc.  And  I  the  9th  sec- 
tion of  the  same  act.  it  is  declared.  "That  all  the  money  accruing,  or 
vshich  has  already  accrued  from  the  sale  of  prizes,  shall  be  and  remain 


106 


JUDGMENTS  OF  THE  SUPREME  COURT 


forever  a  fund  for  the  payment  of  the  half-pay  to  the  officers  and 
seamen,  who  may  be  entitled  to  receive  the  same." 

The  case  was  argued  by  Lewis  and  E.  TUghman,  for  the  plaintiff  in 
error,  and  by  Rawle  and  IV.  Tilghinan,  for  the  defendant ;  and  the  ar- 
gument turned  principally  upon  two  inquiries:  1st.  Whether  the  act 
of  March,  1799,  applied  only  to  the  event  of  a  future  general  war? 
2d.  Whether  France  was  an  ene-^y  of  the  United  States,  within  the 
meaning  of  the  law  ? 

For  the  plaintiff  in  error,  it  was  urged,  that  the  acts,  passed  in 
immediate  relation  to  France,  were  of  a  restricted  temporary  nature; 
but  that  the  act  of  March,  1799,  esUblished  a  permanent  system  for 
the  government  of  the  navy ;  and  the  designation  of  "the  enemy"  in 
that  act,  applies  only  to  future  hostilities,  in  case  of  a  declared  war. 
That  on  the  just  principles  of  government,  every  citizen  has  a  right 
to  the  public  protection ;  and  therefore,  no  salvage  ought,  in  strictness, 
to  be  allowed  for  the  recapture  of  the  property  of  a  citizen  by  a  public 
ship  of  war.  Vatt.  lib.  2,  c.  6,  §  71.  And  Congress  has  manifested, 
in  some  degree,  their  sense  on  the  subject,  by  making  the  salvage  in 
that  case  less  than  in  the  case  of  recapture  by  a  private  armed  •  -v 
That  the  word  "enemy"  must  be  construed  according  to  its  legal  ^- 
port  (1  Str.  278) ;  and  that,  according  to  legal  interpretation,  the  dif- 
ferences between  the  United  States  and  France  do  not  constitute  war, 
nor  render  the  citizens  of  France  enemies  of  the  United  States.  Vatt. 
lib.  3,  §§  69,  70;  1  Black.  Com.  237;  2  ibid.  2.S9;  2  Burl.  258.  §  31; 
261,  §  39;  262.  That  a  subsequent  l"w  does  not  abrogate  a  prior  law, 
unless  it  contains  contradictory  matter ;  and  where  there  are  no  nega- 
tive or  repealing  words,  both  must  be  so  construed  as  to  stand  to- 
gether. 11  Co.  61,  63:  Show.  439;  10  Mod.  118;  6  Co.  19  fe.  That 
the  act  of  March,  1799.  contains  no  repealing  or  negative  words;  and 
may  be  applied,  consistently,  to  the  case  of  a  future  public  war,  leaving 
the  qualified  state  of  hostility  with  France,  for  the  operation  of  the 
preceding  law. 

For  the  defendant  in  error,  it  was  contended,  that  the  relative  situa- 
tion of  the  United  States  and  France,  is  that  of  "a  qualified  maritime 
war;"  on  the  part  of  the  French,  aggressive;  on  our  part,  defensive; 
proceeding  from  a  legitimate  expression  of  the  public  will,  through  its 
constitutional  organ,  the  congress,  manifested  by  public  declarations 


BAS  V.  TINGY  (THE  ELIZA) 


107 


and  open  acts.  That  from  such  a  state,  the  character  of  enemy  neces- 
"v-rily  arises;  and  that  the  designation  being  so  understood  by  con 
g.ess,  was  intended  to  be  applied,  and  was  actually  applied,  to  France. 
That  the  act  of  March,  1799,  speaks  of  prizes,  which  could  only  be  such 
as  had  been  captured  from  France;  and  that  taking  the  word  prize, 
according  to  its  legal  signification,  it  means  a  capture,  or  acquisition 
by  right  of  war,  in  a  state  of  war.  3  Bl.  Com.  69,  108;  2  Wood.  441 ; 
Doug.  585,  591 ;  Rob.  Adm.  283.  That  if  a  prize  ..eans  a  capture  in 
war,  it  follows,  of  course,  that  it  means  a  capture  from  an  enemy ;  for 
war  can  only  be  waged  against  enemies.  That  war  may  exist,  without 
a  declaration ;  a  defensive  war  requires  no  declaration ;  and  an  imper- 
fect or  qualified  public  war,  is  still  distinct  from  the  case  of  letters 
of  marque  and  reprisal,  for  the  redress  of  a  private  wrong,  by  the  em- 
ployment of  a  private  force.  1  Ruth.,  lib.  ;,  c.  19,  §  1,  p.  470-1 ;  2 
ibid.  497-8,  503,  507,  511;  Buri.  196,  189;  Vatt  475;  2  Burl.  204, 
§  7;  Lee  on  Capt.  13-39;  PuflF.  843;  Grot.,  lib.  3,  c.  3,  §  6;  Molloy.  46. 
That  congress,  by  repealing  the  regulations  respecting  salvage,  con- 
tained in  the  act  of  March,  1798,  has  virtually  declared,  that  those 
regulations  were  in  force,  in  relation  to  France;  and  that  the  provi- 
sions in  the  act  of  March,  1799,  being  inconsistent  *ith  the  provision 
in  the  act  of  June,  1798,  the  elder  law  is  so  far  repealed.' 

The  judges  delivered  their  opinions  seriatim  in  the  following  manner : 

Moore,  Justice.— This  case  depends  on  the  construction  of  the  act 
for  the  regulation  of  the  navy.  It  is  objected,  indeed,  that  the  act  ap- 
plies only  to  future  wars ;  but  its  provisions  are  obviously  applicable  to 
the  present  situation  of  things,  and  there  is  nothing  to  prevent  an  im- 
mediate commencement  of  its  operation. 

It  is,  however,  more  particularly  urged,  that  the  word  "enemy"  can 
not  be  applied  to  the  French ;  because  the  section  in  which  it  is  used. 
IS  confined  to  such  a  state  of  war,  as  would  authorize  a  recapture  of 
property  belonging  to  a  nation  in  amity  with  the  United  States,  and 
such  a  state  of  wr.r,  it  is  said,  does  not  exist  between  America  and 
France.  A  number  of  books  have  been  cited  to  furnish  a  glossary  on 
the  V,  ord  enemy ;  yet,  our  situation  is  so  extraordinary,  that  I  doubt 

J.f^^}  ^\'T  °i  C°"'^es^  passed  in  relation  to  France,  were  cited  and  di^- 

T.^to^.tintrV"  '^'  ^°""«  °f  th?  argument:  but  it  is  thought  unneces- 
sary  to  reter  to  them  more  particularly  in  this  report. 


108 


JUDGMENTS  OF  THE  SUPREME  COURT 


whether  a  parallel  case  can  be  traced  in  the  history  of  nations.  But  if 
words  are  the  representatives  of  ideas,  let  me  ask,  by  what  other 
word,  the  idea  of  the  relative  situation  of  America  and  France  could 
be  communicated,  than  by  that  of  hostility  or  war  ?  And  how  can 
characters  of  the  parties  engaged  in  hostility  or  war,  be  otherwise 
described,  than  by  the  denomination  of  enemies?  It  is  for  the  honor 
and  dignity  of  both  nations,  therefore,  that  they  sliould  be  called  ene- 
mies; for  it  is  by  that  description  alone,  that  cither  could  justify  or 
excuse  the  scene  of  bloodshed,  depredation  and  confiscation,  which 
has  unhappily  occurred;  and  surely,  Congress  could  only  employ  the 
language  of  the  act  of  June  13,  1798,  towards  a  nation  whom  she  con- 
sidered as  an  enemy. 

Nor  does  it  follow,  that  the  act  of  March,  1799,  is  to  have  no  opera- 
tion, because  all  the  cases  in  which  it  might  operate,  are  noi  in  exist- 
ence at  the  time  of  passing  it.  During  the  present  hostilities,  it  affects 
the  case  of  recaptured  property  belonging  to  our  own  citizens,  and  in 
the  event  of  a  future  war,  it  might  also  be  applied  to  the  case  of  re- 
captured property  belonging  to  a  nation  in  amity  with  the  United 
States.  But  it  is  further  to  be  remarked,  that  all  the  expressions  of  the 
act  may  be  satisfied,  even  at  this  very  time:  for  by  former  laws,  tlie 
recapture  of  property,  belonging  to  persons  resident  within  the  United 
States,  is  authorized;  those  residents  may  be  aliens;  and  if  they  are 
subjects  of  a  nation  in  amity  with  the  United  States,  they  answer 
completely  the  description  of  the  law. 

The  only  remaining  objection,  offered  on  behalf  of  the  plaintitl 
in  error,  supposes,  that,  because  there  are  no  repealing  or  negative 
words,  the  last  law  must  be  confined  to  future  cases,  in  order  to  have  ;i 
subject  for  the  first  law  to  regulate.  Rut  if  two  laws  are  inconsistent 
(as.  in  my  judgment,  the  laws  in  question  are),  the  latter  is  a  virtual 
repeal  of  the  former,  without  any  exprr'^s  declaration  on  the  subject. 

On  these  grounds.  I  am  clearly  of  opinion,  that  the  decree  of  the 
circuit  court  ought  to  be  affirmed. 

W.AsniNT.njN,  Justice.— It  is  admitted,  on  all  h.inds.  that  the  defen- 
dant in  error  is  entitled  to  some  compensation :  bu.  the  plaintiff  in 
error  contends,  that  the  compensation  should  Ik:  regulated  by  the  ict 
of  the  28th  June.  1708  (1  U.  S.  Stat.  574,  §  2),  which  allows  only  om- 
cighth  for  salvage :  while  the  defendant  in  error  refer;  his  claim  to  tlie 
act  of  the  2d  March  (ibid.  7\f).  §  7).  which  makes  an  allowance  of 


BAS  V.  TINGY  (THE  ELIZA) 


109 


one-half,  upon  a  recapture  from  the  enemy,  after  an  adverse  posses- 
sion of  ninety-six  hours.  If  the  defendant's  claim  is  well  founded,  it 
follows,  that  the  latter  law  must  virtually  have  worked  a  repeal  of  the 
former ;  but  this  has  been  denied,  for  a  variety  of  reasons : 

1st.  Because  the  former  law  relates  to  recaptures  from  the  French, 
and  the  latter  law  relates  to  recaptures  from  the  enemy ;  and  it  is  said, 
that  "the  enemy"  is  not  descriptive  of  France  or  of  her  armed  vessels, 
according  to  the  correct  and  technical  understanding  of  the  word. 

The  decision  of  this  question  must  depend  upon  another;  which  is, 
whether,  at  the  time  of  passing  the  act  of  Congress  of  the  2d  of 
March,  1799,  there  subsisted  a  state  of  war  between  the  two  nations? 
It  may,  I  believe,  be  safely  laid  down,  that  every  contention  by  force, 
between  two  nations,  in  external  matters,  under  the  authority  of  their 
respective  governments,  is  not  only  war,  but  public  war.  If  it  be  de- 
clared in  form,  it  is  called  solemn,  and  is  of  the  perfect  kind ;  because 
one  whole  nation  is  at  war  with  another  whole  nation;  and  all  the 
members  of  the  nation  declaring  war  are  authorized  to  commit  hostili- 
ties against  all  the  members  of  the  other,  in  every  place  and  under 
every  circumstance.  In  such  a  war,  all  the  members  act  under  a 
general  authority,  and  all  the  rights  and  consequences  of  war  attach  to 
their  condition. 

But  hostilities  may  subsist  between  two  nations,  more  confined  in  its 
nature  and  extent;  being  limited  as  to  places,  persons  and  things:  and 
this  is  more  properly  termed  imperfect  war;  because  not  solemn,  and 
because  those  who  are  authorized  to  commit  hostilities  act  under  special 
authority,  and  can  go  no  further  than  to  the  extent  of  their  commis- 
sion. Still,  however,  it  is  public  war,  because  it  is  an  external  conten- 
tion by  force,  bttween  some  of  the  members  of  the  two  nations, 
authorized  by  the  legitimate  powers.  It  is  a  war  between  the  two 
nations,  though  all  the  members  are  not  authorized  to  commit  hostili- 
ties, such  as  in  a  solemn  war,  where  the  government  restrain  the 
general  power. 

Now,  if  this  be  the  true  definition  of  war.  let  us  sec.  what  was  the 
Mtuation  of  the  United  States  in  relation  to  France.  In  March.  1799, 
Congress  had  raised  an  army:  stopped  all  intercourse  with  France; 
dissolved  our  treaty;  built  and  equipped  ships  of  war;  and  cnmmis- 
sinned  priv.ite  armed  ships ;  enjoining  the  former,  and  authorizing  the 
latter,  to  defend  themselves  against  the  arm-d  ships  of  France,  to 
attack  them  on  the  high  seas,  tn  subdue  and  take  them  as  prize,  and 


no 


JUDGMENTS  OF  THE  SUPREME  COURT 


to  recapture  armed  vessels  found  in  their  possession.  Here,  then,  let 
me  ask,  what  were  the  technical  characters  of  an  American  and 
French  armed  vessel,  combating  on  the  high  seas,  with  a  view,  the  one 
to  subdue  the  other,  and  to  make  prize  of  his  property?  They  cer- 
tainly were  not  friends,  because  there  was  a  contention  by  force ;  nor 
were  they  private  enemies,  because  the  contention  was  external,  and 
authorized  by  the  legitimate  authority  of  the  two  governments.  If 
they  were  not  our  enemies,  I  know  not  what  constitutes  an  enemy. 

2d.  But  secondly,  it  is  said,  that  a  war  of  the  imperfect  kind,  is 
more  properly  called  acts  of  hostility  or  reprisal,  and  that  Congress  did 
not  mean  to  consider  the  hostility  subsisting  between  France  and  the 
United  States,  as  constituting  a  state  of  war.  In  support  of  this  posi- 
tion, it  has  been  observed,  that  in  no  law,  prior  to  March,  1799,  is 
France  styled  our  enemy,  nor  are  we  said  to  be  at  war.  This  is  true ; 
but  neither  of  these  things  were  necessary  to  be  done :  because,  as  to 
France,  she  was  sufficiently  described  b'  the  title  of  the  Frendi  Re- 
public; and  as  to  America,  the  degre  of  hostility  meant  to  be  car- 
ried on,  was  sufficiently  described,  without  declaring  war,  or  de- 
claring that  we  were  at  war.  Such  a  declaration  by  Congress,  might 
have  constituted  a  perfect  state  of  war,  which  was  not  intended  by 
the  government. 

3d.  It  has  likewise  been  said,  that  the  7th  section  of  the  act  of  Manli. 
1799,  embraces  lases  which,  according  to  preexisting  laws,  could  n^t 
then  take  place,  because  no  authority  had  been  given  to  rccapturo 
friendly  vessels  from  the  French ;  and  this  argument  was  strongly  anl 
forcibly  pressed.  But  because  every  case  provided  for  by  this  law  \va- 
not  then  existing,  it  docs  not  follow,  that  the  law  should  not  opemtc 
upon  such  as  did  exist,  and  ufwn  the  rest,  whenever  they  should  ari-e 
It  is  a  permanent  law,  embracing  a  variety  of  subjects,  not  maile  in 
relation  to  the  present  war  with  France  only,  but  in  relation  to  .nnv 
future  war  with  her.  or  with  any  other  nation.  It  might  then  very 
properly  allow  salvage  for  recapturin-;  of  American  vessels  from 
France,  which  had  previously  I)een  authorized  by  law,  though  it  couM 
not  immediately  apply  to  the  vessels  of  friends-  and  whenever  suc'i 
a  war  should  exist  between  the  United  States  and  France,  or  anv 
other  nation,  as,  according  to  the  law  of  nations,  or  special  .luthority, 
would  justify  the  recapture  of  friendly  vessels,  it  might,  on  that  event. 
with  similar  propriety,  apply  to  them,  which  funiishcs.  I  think,  the  trtic 
construction  of  the  act     The  opinion  which  I  delivered  at  New  York, 


BA3  r   TIVGV  CTHr,  ELIZA 
Seeman.  was,  tha:  although  an  American  ves5«t  couk 


in  Talbot 

jnstify 

neither 

der  which  the  A.T:encan  ac-.efi. 


the  retaking  of  a  ne-jtral    vesie!    from   the   Frer 
e  sort  of  A-ar  that  -ubiatefd,  nor 


111 


not 


jrcauie 


s-T'-^r.r; 


the  7th  lect: 


thorized  'iie  proc-te^:- 


,n  ot 


-e  act  of  1759.  apphe'i 


5f.^'T-.;-i     *•-. 


ai  an  enemy,  in  all  ca-cs  authorized  by  Congreii.    Ar^i  on 
n-.y  -.pinion  remami  un-haker. ;  or  r-I:rer  r^  ^>«n  crxis'rtne'i 
very  able  dacuiiior.   wh;ch  the  :-:b-ec 
court,  on  the  ap«a!  from  ^:v  d'^cree. 

.\nother  reason  haj  been  iisiene^!  \:  •-*  ^.f»-j 


Fra 


"ance 


both  '^A-: 


the 


r-ai  Late: 


:derg',T 


t.-.e  romer  law 


•Ot  tv  be  rt?ard*--f  s;  -•»' 


t?^ 


eoealed 


tr.at  a  subserjuent  arr.rmat 
arrraiative  specu.!  !aw.  if 


n-lant  ;  counsei 
the  latter,  t 


ger.era:   liw 


^•5--' 


repea: 


K  taxen.  oeca-.:^  --jth  an  trit 


to^'tther 


ground 


.egiilature  :': 


the 


aopue,  w.-iere 


ng  tor.tra- 


:  an 

k*5.    3 


tecent  ten.-ure  u: 


■-trad: 


apsea: 


r.ot  10: 


iince  the  teniu: 


a.T.e  ia-A  ;  and 


on. 


-J   ;.   J, 


■v.  t.' 


:a:  a 


t.-.at 


^  jufT^cient  cv'd*r''^ 
;••%:  law}  ate  in  f:":^ 


:on    a; 


■s- 


wi  a: 


.  .";•  are 


■ight  not 
thange 


::n:e.  may  not  be 
hanged  :  biit  the  grtund 


to  b^  presumed.    Yet. 


t.-e  .eg-.j^tive  ■*-; 


■eg: 


i-,- 


In  fart  and 


eitime    t.     .'.  r.at 
:n  Law-,  we  are  at 


•u. 


erican 


'■? 


an  en  em-. 


en:-  vei^e! 
itr-nteiv 


•*     ,--!     ^. 


"ran-re  ■  f 


■ratxure; 


'•i'l. 


;:h 


--?e  •/• 


1  --.3-   i- 


Ztr.trk. 


-1.-.  v?e 


Mi-:-  :r>5 


^•^.^.\Z'■. 


wi-  t.ate 


-•-J 


112 


JUDGMENTS  OF  THE  SUPREME  COURT 


a  circumstance  for  which  the  former  salvage  law  had  not  provided. 
The  two  laws,  upon  the  whole,  can  not  be  rendered  consistent,  unless 
the  court  could  wink  so  hard  as  not  to  see  and  know,  that  in  fact,  in 
the  view  of  Congress,  and  to  every  intent  and  purpose,  the  possession 
by  a  French  armed  vessel  of  an  American  vessel,  was  the  possession 
of  an  enemy:  and  therefore,  in  my  opinion,  the  decree  of  the  circuit 
court  ought  to  be  affirmed. 

Cii.xsE.  Justice. — The  judges  agreeing  unanimously  in  their  opinion, 
I  presumed,  that  the  sense  of  the  court  would  have  been  delivered  by 
the  president  and  therefore,  I  have  not  prepared  a  formal  arguni  nt 
on  the  occasion.  I  find  no  difficulty,  however,  in  assigning  the  general 
reasons  which  induce  me  to  concur  in  affirming  the  decree  of  the 
circuit  court. 

.\n  American  public  vessel  of  war  recaptures  an  American  merchant 
vessel  from  a  French  privateer,  after  ninety-six  hours  possession,  and 
the  question  is  stated,  what  salvage  ought  to  be  allowed?  There  are 
two  laws  on  the  subject :  by  the  first  of  which,  only  one-eighth  of  the 
value  of  the  recapti  '  property  is  allowed;  but  bv  the  second,  the 
recaptor  is  entitled  ic  a  moiety.  The  recapture  happened  after  tlic 
passing  of  the  latter  law ;  and  the  whole  controversy  turns  on  tlie 
single  question,  whether  France  was,  at  that  time,  an  enemy?  If 
France  was  an  enemy,  then  the  law  obliges  us  to  decree  one-half  of 
the  value  of  the  ship  and  cargo  for  salvage:  but  if  France  was  not  ar. 
enemy,  then  no  more  than  one-eighth  can  be  allowed. 

The  decree  of  the  circuit  court  (in  which  I  presided)  passed  by  con 
sent:  but  although  I  never  gave  an  opinion,  I  have  never  entertaiiic'l 
a  doubt  on  the  subject.  Congress  is  empowered  to  declare  a  gencr.il 
war,  or  Congress  may  wage  a  limited  war;  limited  in  place,  in  object, 
and  in  time.  If  a  general  war  is  declared,  its  extent  and  operat'oii« 
are  only  restricted  and  regulated  by  the  jus  belli,  forming  a  part  of 
the  law  of  nations :  but  if  a  partial  war  is  waged,  its  extent  and  oper:!- 
tion  depend  on  our  municipal  laws. 

What,  then,  is  the  nature  of  the  contest  subsisting  bctwui! 
.America  and  France'  In  my  judgment,  it  is  a  limited,  partial  war 
Congress  has  not  declared  war,  in  general  terms ;  but  Congress  !i:i  - 
authorized  hostilities  on  the  high  sens,  by  certain  persons,  in  certain 
ca.-es.  There  is  no  authority  gi'  'n  to  commit  hostilities  on  lam! ;  t  > 
cnpturc  unanned  French  vessels,  nor  even  to  capture  French  arnici 


t\ 


BAS  V.  TIXGV  rTHE  ELIZA. 


113 


vessels,  lying  in  a  French  port;  and  the  auLhontv  n  not  gi%en  indis- 
cruninateiy  to  ever/  citizen  of  America,  against  every  citizen  of  France 
but  only  to  citizens  appointed  by  commissions,  or  exposed  to  immediate 
outrage  and  violence.  So  far  it  is,  unquestionably,  a  partial  war-  but 
nevertheless,  it  is  a  public  war,  on  account  of  the  public  authority  from 
which  it  emanates. 

There  are  four  acts,  authorized  by  our  government,  that  are  demon- 
strative of  a  state  of  war.    A  l^IIigerent  f.>wer  has  a  right,  bv  the  law 
of  nations,  to  search  a  neutral  vessel ;  and  upon  suspicion  of  a  viola- 
tion ot  her  neutral  obligations  to  seize  and  carrv   her  into  port  for 
further  examination.    But  by  the  acts  of  Congress,  an  American  vessel 
IS  authorized-   1st.  To  resist  the  search  of  a  French  public   ve-el  ■ 
2d    To  capture  any  vessel  that  should  attempt,  bv   force,  to  compel 
submission  to  a  search :  3d.  To  recapture  any  .Amencan  vessel  seized  by 
a  French  vessel :  and  4th.  To  capture  any  French  armed  -vessel  wherever 
found,  on  the  high  =ea=.     This  suspen-on  .,f  the  law  of  natKn^    this 
nght  of  capture  and  recapture,  can  only  be  autr.  rize-i  bv  an  act  of  the 
government,  which  is,  in  itself,  an  act  of  hr^tilitv.     But  nil!    i^  is  a 
restrained  or  limited  hostility :  and  there  are.  undoubtedlv,  manv  rights 
attached  to  a  general  war.  which  do  not  attach  to  this  modification  of 
the  powers  of  .lefense  and  aggression.     Hence,  whether  such  ^hall  \ye 
the  denomination  of  the  relative  situation  of  .\merica  and  France   ha= 
occasioned  great  controversy  at  the  bar:  and   it  appears,  that   .^  r 
Wilham   Scott  also   was  embarra-^ed   in  describmg  it.  when   he  ob- 
served, "that  in  the  present  -tate  of  hostility  (if  so  it  mav  be  called) 
between  America  and  France."  it  is  the  practice  of  the  English  court 
of  admiralty,  to  restore  recaptured  American  property,  on  pavment  of 
a  salvage.     (The  Santa  Cruz,  1  Rob.  54.)     But,  fo'r  mv  part    I  can 
not  perceive  the  difficulty  of  the  case.     As  there  mav  \^  a  public  gen- 
eral war,  and  a  public  qualified  war :  so  there  rr:ay.  up-.n  cr.rre^por.dent 
pnn::ple<.  be  a  general  e.iemy.  and  a  partial  enemv.     The  designation 
01  "enemy'  extends  to  a  case  of  perfect  war :  but  a'^  a  general  de-igna- 
ti.-n.  it  surely  include^;  the  less,  a^  well  a=  the  ereater.  -r^ies  of  war- 
fare    If  Congress  had  chosen  to  declare  a  general  war,  France  would 
have  been  a  general  enemy  ;   having  chosen   to   wage  a  partial   war 
France  was,  at  the  time  of  the  capture,  only  a  partial  enemv;  but  -til! 
'he  wa«  an  enemv. 

It  ha.  been  urged,  however,  that  Congress  did  not  intend  the  pro 
Msions  of  the  art  of  March.  1799,  for  the  case  r  f  our  subsisting  quali- 


114 


JUDGMENTS  OF  THE  SUPREME  COURT 


ned  hostility  with  France,  but  for  the  case  of  a  future  state  of  gen- 
eral war  with  any  nation :  I  think,  however,  that  the  contrary  appears 
from  the  terms  of  the  law  itself,  and  from  the  subsequent  repeal.  In 
the  9th  section,  it  is  said,  that  all  the  money  accruing,  "or  which  has 
already  accrued  from  the  sale  of  prizes,"  shall  constitute  a  fund  for 
the  half-pay  of  officers  and  seamen.  Now,  at  the  time  of  making  this 
appropriation,  no  prizes  (which  ex  vi  termini  implies  a  capture  in  a 
state  of  war)  had  been  taken  from  any  nation  but  France,  those  which 
had  been  taken,  were  not  taken  from  France  as  a  friend ;  they  must, 
consequently,  have  been  taken  from  her  as  an  enemy;  and  the  retro- 
spective provision  of  tbj  law  can  only  operate  on  such  prizes.  Be- 
sides, when  the  13th  section  regulates  "the  bounty  given  by  the  United 
States  on  any  natic  .al  ship  of  war,  taken  from  the  enemy,  and  brought 
into  port,"  it  is  o'  vious,  that  even  if  the  bounty  has  no  relation  to 
previous  captures,  it  must  operate  from  the  moment  of  passing  the 
act.  and  embraces  the  case  of  a  national  ship  of  war,  taken  from 
France  as  an  enemy,  according  to  the  existing  qualified  state  of  hos- 
tilitiej.  But  the  repealing  act,  passed  on  the  3d  of  March,  1800  (sub- 
sequent to  the  recapture  in  the  present  case)  ought  to  silence  all  doubt 
as  to  the  intention  of  the  legislature;  for,  if  the  act  of  March.  1799, 
did  not  apply  to  the  French  Republic,  as  an  enemy,  there  could  be  no 
reason  for  altering  or  repealing  that  part  .)f  it,  which  regulates  the  rate 
of  salvage  on  recaptures. 

The  acts  of  Congress  have  been  analyzed,  to  show,  that  a  war  is  not 
openly  denounced  against  France,  and  that  France  is  nowhere  ex- 
pressly called  the  ei.emy  of  .America:  but  this  only  proves  the  circum- 
spection and  prudence  of  the  legislature.  Considering  our  national 
prepossessions  in  favor  of  the  French  Republic,  Congress  had  sn 
arduous  task  to  perform,  even  in  preparing  for  necessary  defetue  and 
just  retaliation.  As  the  temper  of  the  people  rose,  however,  in  resent- 
ment of  .nccumulated  wrongs,  the  language  and  the  measures  of  the 
government  became  more  and  more  energetic  and  mdignant ;  though 
hitherto  the  popular  feeling  may  not  have  been  ripe  for  a  solemn  decla- 
ration of  war;  and  an  active  and  powerful  opposition  in  our  public 
councils,  has  postponed,  if  not  prevented,  that  decisive  event,  which 
many  thought  would  have  best  suited  the  interest,  as  well  as  the  honor, 
of  the  United  States.  The  progress  of  our  contest  with  France,  indeed, 
resemble^  much  the  progress  of  our  revolutionary  contest ;  in  which, 
untchiiig  the  current  of  public  sentiment,  the  patriots  of  that  day  pro- 


BAS  V.  TINGY  (THE  ELIZA)  1J5 

ceeded.  step  by  step,  from  the  supplicatory  language  of  petitions  for  a 
redress  of  grievances,  to  the  bold  and  noble  declaration  of  national  in- 
dependence. Having,  then,  no  hesitation  in  pronouncing  that  a  partial 
war  exists  between  America  and  France,  and  that  France  was  an 
enemy,  withm  the  meaning  of  the  act  of  March,  1799,  my  voice  must 
be  gjven  for  affirming  the  decree  of  the  circuit  court. 

Paterson,  Justice.-As  the  case  appears  on  the  record,  and  has  been 
accurately  stated  by  the  counsel,  and  by  the  judges  who  have  delivered 
their  opinions,  it  is  not  necessary  to  recapitulate  the  facts.    My  opinion 
shall  be  expressed  in  a  few  words.    The  United  States  and  the  French 
Republic  are  in  a  qualified  state  of  hostility.    An  imperfect  war  or  a 
war,  as  to  certain  objects,  and  to  a  certain  extent,  exists  betwem  the 
two  nations;  and  this  modified  warfare  is  authorized  by  the  constitu- 
tional authority  of  our  country.    Itisawar^MWAoc.    As  far  as  Con- 
gress tolerated  and  authorized  the  war  on  our  part,  so  far  may  we  pro- 
ceed in  hostile  operations.    It  is  a  maritime  war,  a  war  at  sea   as  to 
certain  purposes.     The  national  armed  vessels  of  France  attack  and 
capture  the  national  armed  vessels  of  the  United  States;  and  the 
national  armed  vessels  of  the  United  States  are  expressly  authorized 
and  directed  to  attack,  subdue  and  take  the  national  armed  vessels  of 
France,  and  also  to  recapture  American  vessels.     It  is.  therefore    a 
public  war  between  the  two  nations,  qualified  on  our  part,  in  the  man- 
ner prescribed  by  the  constitutional  organ  of  our  countiy.    In  such  a 
state  of  things,  it  is  scarcely  necessary  to  add,  that  the  term  "enemy  " 
applies;  it  is  the  appropriate  expression,  to  be  limited  in  its  signifi- 
cation, import  and  use,  by  the  qualified  nature  and  operation  of  the  war 
on  our  part.    The  word  enemy  proceeds  the  full  length  of  the  war 
and  no  further.     Besides,  the  intention  of  the  legislature  as  to  the 
meaning  of  this  word,  enemy,  is  clearly  deducible  from  the  act  for  the 
government  of  the  navy,  passed  the  2d  of  March.  1799     This  act 
cmbrpces  the  past,  present  and  future,  and  contains  passages  which 
point  the  character  of  enemy  at  the  French,  in  the  most  clear  and  ir- 
resistible manne..     I  shall  select  one  paragraph,  namely    that  which 
refers  to  prizes  taken  by  our  public  vessels,  anterior  to  the  passing  of 
ihe  latter  act.    The  word  prizes  in  this  section  ran  appiv  to  the  French 
and  the  French  only.     This  is  decisive  on  the  subject  of  legislative 
intention. 

By  the  Court.    -Let  the  decree  of  the  circuit  court  be  affirmed. 


116 


JUDGMENTS  OF  THE  SUPREME  COURT 


»-      .. 


TALBOT  V.  SEEM  AN,  (THE  AM  ELI  Ay 
Salvage. — Partial  war. — Foreign  laws 

Salvage  allowed  to  the  United  States  ship  of  war,  for  the  recapture  of  a 
Hamburg  vessel  out  of  the  hands  of  the  French  (France  and  Hamburg 
being  neutral  to  each  other),  on  the  ground  that  she  was  in  danger  of 
condemnation  under  the  French  decree  of  the  18th  January,  1798. 

The  United  States  and  France,  in  the  year  1799,  were  in  a  state  of  partial  war. 

To  support  a  demand  for  salvage,  the  recapture  must  be  lawful,  and  a 
meritorious  service  must  be  rendered. 

Probable  cause  is  sufficient  to  render  the  recapture  lawful. 

Where  the  amount  of  salvage  is  not  regulated  by  statute,  it  must  be  determined 
by  the  principles  of  general  law. 

Marine  ordinances  of  foreign  countries,  promulgated  by  the  executive,  by  order 
of  the  legislature  of  the  United  States,  may  be  read  in  the  courts  of  the 
United  States,  without  further  authentication  or  proof. 

Municipal  laws  of  foreign  countries  are  generally  to  be  proved  as  facts. 

This  was  a  writ  of  error  to  reverse  a  decree  of  the  Circuit  Court, 
which  reversed  the  decree  of  the  District  Court  of  New  York,  so  far 
as  it  allowed  salvage  to  the  recaptors  of  the  ship  Amelia  and  her  cargo. 

The  libel  in  the  district  court  was  filed  November  5,  1799,  by  Cap- 
tain Talbot,  in  behalf  of  himself  and  the  other  officers  and  crew  of  the 
United  States  ship  of  war  the  Constitution,  against  the  ship  Amelia, 
her  tackle,  furniture  and  cargo;  and  set  forth — 

1.  That  in  pursuance  of  instructions  from  the  President  of  the 
United  States  he  subdued,  seized,  etc.,  on  the  high  seas,  the  said  ship 
Amelia  and  cargo,  etc.,  and  brought  her  into  the  poit  of  New  York. 

2.  That  at  the  time  of  capture,  she  was  armed  witi.  eight  carriage- 
guns,  and  was  under  the  command  of  citizen  Etienne  Prevost,  a 
French  officer  of  marine,  and  had  on  board,  besides  the  commander, 
eleven  French  mariners.  That  the  libellant  had  been  informed,  that 
she,  being  the  property  of  some  person  to  him  unknown,  sailed  from 
Calcutta,  an  English  port  in  the  East  Indies,  bound  for  some  port  in 
Europe;  that  upon  her  said  voyage  she  was  met  wiih  and  captured  by 
a  French  national  corvette,  called  La  Diligente,  commanded  by  L.  J. 
Dubois,  who  took  out  of  her  the  master  and  crew  of  the  Amelia,  with 
all  the  papers  relating  to  her  and  her  cargo,  and  placed  the  said 
Etienne  Prevost,  and  the  said  French  mariners,  on  board  of  her,  and 
ordered  her  to  St.  Domingo  for  adjudication,  as  a  good  and  lawful 


>  1  Cranch,  I ;  Augv  t  term,  1801. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  117 

prize;  and  that  she  remained  in  the  full  and  peaceable  possession  of 
the  French  from  the  time  of  her  capture,  for  tlie  space  of  ten  days 
whereby,  the  libellant  was  advised,  that,  as  well  by  the  law  of  nations 
as  by  the  particular  laws  of  France,  the  said  ship  became,  and  was  to 
be  considered,  as  a  French  ship. 

Whereupon,  he  prayed  usual  process,  etc..  and  condemnation;  or,  in 
case  restoration  should  be  decreed,  that  it  might  be  on  payment  of  such 
salvage  as  by  law  ought  to  be  paid  for  the  same. 

The  claim  and  answer  of  Hans  Frederic  Seeman.  in  behalf  of 
Messrs.  Chapeau  Rouge  &  Co..  of  Hamburg,  owners  of  the  ship  Amelia 
and  her  cargo,  stated,  that  the  said  ship,  commanded  by  Jacob  F 
Engelbrecht.  as  master,  sailed  on  the  20th  of  February,  1798,  from 
Hamburg,  on  a  voyage  to  the  East  Indies,  where  she  arrived  safe-  that 
m  April.  1799,  she  left  Calcutta,  bound  to  Hamburg;  that  during  her 
voyage,  and  at  the  time  of  her  capture  by  the  French,  she  and  her 
cargo  belonged  to  Messrs.  Chapeau  Rouge  &  Co.,  citizens  of  Ham- 
burg, and  if  restored,  she  will  be  wholly  their  property;  that  on  the 
6th  of  September,  on  her  voyage  home,  she  was  captured  on  the  high 
seas  by  a  French  armed  vessel,  commanded  by  citizen  Dubois    who 
took  out  the  master  and  thirteen  of  her  crew,  and  all  her  papers, 
leaving  on  board  the  claimant,  who  was  mate  of  the  Amelia,  the  doctor 
and  five  other  men.  That  the  French  commander  put  on  board  twelve 
hands,  and  ordered  her  to  St.  Domingo,  and  parted  from  her  on  the 
fifth  day  after  her  capture.     That  on  the  15th  of  September,  the 
Amelia,  while  in  possession  of  the  French,  was  captured,  without  any 
resistance  on  her  part,  by  the  said  ship  of  war  the  Constitution    and 
brought  into  New  York.    That  the  Amelia  had  eight  carriage  guns   it 
being  usual  for  all  vessels,  in  the  trade  she  was  carr\-ing  on,  to  'be 
armed,  even  in  times  of  general  peace.     That  there  being  peace  be- 
tween France  and  Hamburg,  at  the  time  of  the  first  capture,  and  aho 
between  the  United   States  and   Hamburg,  and  between   the  United 
States  and  France,  the  possession  of  the  .  Uiiclia  bv  the  French,  in  the 
manner,  and  for  the  time  stated  in  the  said  libel,  could,  neither  by  the 
law  of  nations,  nor  by  the  laws  of  France,  nor  bv  those  of  the  United 
States,  change  the  property  of  the  said  ship  Amelia  and  her  cargo,  or 
make  the  same  liable  to  condemnation  in  a  French  coun  of  admiralty 
that  the  same  could  not.  therefore,  be  considered  as  Frcn<-h  propert>'' 
wherefore,  he  prayed  restoration  in  like  plight  as  at  the  time  of  cap- 
ture by  the  sliip  Constitution,  with  cost'^  and  charge';. 


118 


JUDGMENTS  OF  THE  SUPREME  COURT 


On  the  16th  of  December,  1799,  the  district  judge,  by  consent  of 
parties  made  an  interlocutory  decree,  directing  the  marshal  to  sell 
the  ship  and  cargo,  and  bring  the  money  into  court;  and  that  the 
clerk  should  pay  half  of  the  amount  of  sales  to  the  claimant,  on  his 
giving  security  to  refund,  in  case  the  court  should  so  decree ;  and  that 
the  clerk  should  retain  the  other  half  in  his  hands,  together  with  all 
costs  and  charges,  etc. 

Afterwards,  on  the  25th  of  February,  1800,  the  judge  of  the  district 
court  (Hobart)  made  his  final  decree,  directing  half  of  the  gross 
amount  of  sales  of  the  ship  and  cargo,  without  any  deduction  what- 
ever, to  be  paid  to  the  libellant  for  the  use  of  the  officers  and  crew 
of  the  ship  Constitution,  to  be  distributed  according  to  the  act  of  Con- 
gress for  the  government  of  the  navy  of  the  United  States.  And  that 
out  of  the  other  moiety,  the  clerk  should  pay  the  officers  of  the  court, 
and  the  proctors  for  the  libellant  and  claimant,  their  taxed  costs  and 
charges,  and  that  the  residue  should  be  paid  to  the  owners  of  the 
Amelia,  or  their  agent.  From  this  decree,  the  claimant  appealed  to  the 
circuit  court. 

At  the  Circuit  Court  for  the  district  of  New  York,  in  April,  1800, 
before  Judge  Washington  and  the  district  judge,  the  cause  was  ar- 
gued by  B.  Litnngston  and  Burr  for  the  appellant,  and  Harrison  and 
Hamilton,  for  the  respondent;  and  on  the  9th  of  April,  1800,  the 
circuit  court  made  the  following  decree,  viz. : 


That  the  decree  of  the  district  court,  so  far  forth  as  it  orders 
a  payment,  by  the  clerk,  of  a  moiety  of  the  gross  amount  of  sales, 
to  Silas  Talbot,  commander,  etc.,  and  to  the  officers  and  crew  of 
the  said  ship  Constitution.  erroneous,  and  so  far  forth,  be  re- 
versed without  co<ts ;  that  is  to  say,  the  court  considering  the 
admission  on  the  part  of  the  respondent,  that  the  papers  brought 
here  by  Jacob  Frederic  Engelbrecht,  master  of  the  ship  Amelia, 
prove  her  and  her  cargo  to  be  Hamburg  property,  and  also  con- 
sidering that  as  the  nation  to  which  the  owners  of  the  said  ship 
and  cargo  belong,  is  in  amity  with  the  French  Republic,  the  said 
ship  and  cargo  could  not.  consistently  with  the  laws  of  nation;, 
be  condemned  by  the  French  as  a  lawful  prize,  and  that,  there- 
fore, no  service  was  rendered  by  the  United  States  ship  of  war 
the  Constitution,  or  by  the  commander,  officers  or  crew  thereof, 
by  the  recapture  aforesaid. 

Whereupon,  it  is  nrdererl,  adjudged  and  decreed  by  the  court, 
and  it  is  hereby  ordered,  adjudtjed  and  decreed  by  the  authority 
of  the  same,  that  the  former  part  of  the  decree  of  the  district 


TALBOT  V.  SEEMAN  (THE  AMELIA) 


119 


court,  by  which  a  moiety  of  the  proceeds  is  allowed  to  the  com- 
mander officers  and  crew  aforesaid,  be  and  the  same  is  hereby 
reversed.  And  the  court  further  considering  all  the  circumstances 
•  !!'  P^"«nt  case,  ansmg  from  the  capture  and  recapture  stated 
in  the  libel  and  claim  and  answer,  and  that  by  the  sale  of  the  <!aid 
stMp  Amelia  and  her  cargo,  made  with  the  express  consent  of  the 
appellant,  the  costs  and  charges  in  this  cause  have  nearly  all  ac- 
crued, and  that,  therefore,  the  expenses  should  be  defraved  out 
of  the  proceeds,  thereupon,  it  is  herebv  further  ordered,  adjudtred 
and  decreed  ,  ne  court,  that  so  much  of  the  said  decree  of  the 
said  district  -otirt  as  relates  to  the  pa,  ent  by  the  clerk,  to  the 
several  officer.;  of  the  court,  and  to  the  proctors  of  the  libellant 
and  clainiant  m  this  cause,  of  their  taxed  costs  and  charges,  out 
of  the  other  moiety  of  the  said  proceeds,  and  also  of  the  residue 
of  the  said  last-mentioned  moiety,  after  deducting  the  costs  and 
charges  aforesaid,  to  the  owner  or  owners  of  the  said  ship  Amelia 
and  her  cargo,  or  to  their  legal  representatives,  be  and  the  same 
is  hereby  affirmed. 

To  reverse  this  decree,  the  libellant  sued  out  a  writ  of  error  to 
the  Supreme  Court,  and  by  consent  of  parties,  the  following  statement 
of  facts  was  annexed  to  the  record  which  came  up: 

The  ship  ^m^/,a  sailed  from  Calcutta,  in  Bencral,  in  the  month 
of  April,  1799,  loaded  with  a  cargo  of  the  product  and  manufac- 
ture of  that  country,  consisting  of  cotton,  sugars  and  dry  goods 
in  bales,  and  was  bound  to  Hamburg.  On  the  6th  of  September, 
in  the  same  year,  she  was  captured,  while  in  the  pursuit  of  her 
said  voyage,  by  the  French  national  corvette  La  Diligente  L  J 
Dubois,  commander,  who  took  out  her  master  and  part  of  he- 
crew  together  with  most  of  her  papers,  and  placed  a  pnze-master 
and  French  sailors  on  board  of  her,  ordering  the  prize-master  to 
conduct  her  to  St.  Domingo,  to  be  judged  according  to  the  laws 
of  war.  On  the  l.Mh  of  the  same  month  of  September,  the  United 
Mates  ship  of  war  the  Constitution,  commanded  b^  Sila-;  Talbot 
Esq.,  the  libellant.  fell  in  with  and  recapture,!  the  Amelia  ^he 
being  then  m  full  possession  of  the  French,  and  pursuing  her 
course  for  St.  Domingo,  according  to  the  orders  received  from 
the  captain  of  the  French  corvette. 

At  the  time  of  the  recapture,  the  Amelia  had  eight  iron  cannon 
mounted,  and  eight  wooden  guns,  with  which  she  left  Calcutta  as 
before  stated^  From  such  of  the  ship's  papers  as  were  found  on 
board,  and  the  testimony  in  the  cau~e.  the  ship  Amelia  and  her 
cargo  appear  to  have  been  the  property  of  Chapeau  Rouge,  a  citi- 
zen of  Hamburg,  residing  and  carrying  on  commerce  in  that 
place.    It  IS  conceded,  that  the  Republic  of  France  and  the  city  of 


120  JUDGMENTS  OF  THE  SUPREME  COURT 

Hamburg  are  not  in  a  state  of  hostility  to  each  other;  and  that 
Hamburg  is  to  be  considered  as  neutral  between  the  present  bel- 
ligerent powers. 

The  Amelia  and  her  cargo,  having  been  sent  by  Captain  Talbot 
to  New  York,  were  there  libelled  in  the  district  court,  and  such 
proceedings  were  thereupon  had  in  that  court,  and  the  circuit 
court  for  that  district,  as  may  appear  by  the  writ  of  error  and 
return. 

The  cause  now  came  on  to  be  argued,  at  August  term,  1801.  by 
Bayard  and  Ingersoll,  for  the  libeilant,  and  Dallas,  Mason  and  Levy. 
for  the  claimant. 

For  .  libeilant,  three  points  were  made.  1.  That  at  the  time,  and 
under  tiie  circumstances,  the  ship  Amelia  was  liable  to  capture  by 
the  law,  and  instructions  to  seize  French  armed  vessels,  for  the  purpose 
of  being  brought  into  port,  and  submitted  to  legal  adjudication  in 
the  courts  of  the  United  States.  2.  That  Captain  Talbot,  by  this  cap- 
ture, saved  the  -hip  Amelia  from  condemnation  in  a  French  court  of 
admiralty.  3.  That  for  this  service,  upon  abstract  principles  of  equity 
and  justice,  according  to  the  law  of  nations,  and  the  acts  of  Congress, 
the  recaptors  are  entitled  to  a  compensation  for  salvage. 

I.  Had  Captain  Talbot  a  right  to  seize  the  Amelia,  and  bring  her 
into  port  for  adjudication? 

The  acis  of  Congress  on  this  subject  ought  all  to  be  considered  to- 
gether and  in  one  view.     This  is  the  general  rule  of  construction, 
where  several  acts  are  made  in  pari  materia.    Plowd.  206-  1    \tk  4v 
458.  ■    '   ' 

ihi.  t  <i  act  auti.urizing  captures  of  French  vessels,  is  that  of  28th 
May,  1798.  (1  U.  S.  Stat.  .%!.)  The  preamble  recites,  that  "wiicroas, 
armed  vessels  sailing  under  authority,  or  pretense  of  authority,  tn.m 
the  Republic  of  France,  have  committed  depredations  on  the  com- 
merce of  the  United  States,"  etc.,  therefore  it  is  enacted,  that  the 
President  be  authorized  to  instruct  and  direct  the  commanders  of  the 
armed  vessels  of  the  United  States  "to  seize,  take  and  bring  into  anv 
port  of  the  United  States,  to  be  proceeded  against  according  to  the 
laws  of  nations,  any  such  armed  vessel,  which  shall  have  committed,  or 
which  shall  be  found  hovering  on  the  coasts  of  the  United  States,  for 
the  purpose  of  committing,  depredations  on  the  vessels  belonging  to 
citizens  thereof ;  and  also  to  retake  any  ship  or  vessel  of  any  citizen 


TALBOT  V.  SEEMA.V  (THE  AMELIA;  j,! 

of  the  United  StateV"^      U    S   Sut  "Ps."  ''h'T'^k  ''"^  ^°'"'"^^" 
A„,„h.r  ^«  >™  P«.H  .,  ,h,  ^,e  ,„sion.  on  ,he  2.vh  tune,  l",,' 

.»".;■  which. . ,  c„„.i,„,.s  r  t--  Th,r:'rL^;r,f:  *^^'^'; 

an>  armed  vessel,  ^ailing  under  Fre^-^  -n-r. 

Ti,„  .      •       ^  'ame.  and  -ur,due  and  capture  the  vp>5<»l 

The  court.  ,n  construing  anv  .ne  of  the^e  'a^vs    will  IT       f 
themselves  to  the  ^trW  i«.;       V    i_  ^"'  ""^^  confine 

t^K  ^.irit  0    the  time         Tu       l^"'  ^^""'^^  '^"•-  '^"^  ^^•'"  <^°"^i'ier 
?.nt  of  the  t,me.  and  the  object  and  intention  of  the  legislature. 


122 


JUDGMENTS  OF  THE  SUPivuME  COURT 


It  is  evident,  by  the  title  of  the  act  of  the  9th  July,  1798,  and  by  the 
general  complexion  of  all  the  acts  of  that  session  upon  the  subject, 
that  it  was  not  the  intention  of  Congress,  by  the  act  of  July  9th,  to 
restrict  the  cases  of  capture  contemplated  by  the  act  of  28th  May,  but 
to  enlarge  them.  The  spirit  of  the  people  was  roused ;  ^hey  demanded 
a  more  vigorous  and  a  more  eflfectual  opposition  to  the  aggressions  of 
France,  and  the  spirit  of  Congress  rose  with  that  of  thp  o,  ^:i<-  It 
can  not  be  supposed,  that  having,  in  May,  used  the  exp'.-£.;ior.  "armc;! 
vessels,  sailing  under  authority,  or  pretense  of  authorit}  fr'  m  the  Re- 
public of  France,"  and  in  June  the  expression,  "any  n>  :>i  vessel, 
sailing  under  French  colors,  or  acting,  or  pretending  lu  uc*  hy  or 
under  the  authority  of  the  French  Republic,"  they  meant  to  restrict 
the  cases  of  capture,  in  July,  when  they  used  the  words  "any  armed 
French  vessel."  On  the  contrary,  the  confidence  in  the  national  opinion 
was  increased,  and  further  measures  of  defense  were  adopted,  intend- 
ing not  to  recede  from  anything  done  before,  but  to  amplify  the  oppo- 
sition. The  act  of  July  was  in  addition  to,  not  in  derogation  from,  the 
act  of  May.  Congress  evidently  meant  the  same  description  of  vesse's, 
in  each  of  those  acts.  "Arme  1  vessels,  sailing  under  authority,  o' 
pretense  nf  authority,  of  France,"  and  "armed  vessels  sailing  under 
French  colors,  or  acting,  or  pretending  to  act,  under  the  authority  of 
the  French  Republic,"  and  "armed  French  vessels,"  must  be  under- 
stood to  be  the  same 

If  there  is  a  difference,  no  reason  can  be  given  for  it.  A  vessel,  in 
the  circumstances  of  the  Amelia,  was  as  capable  of  annoying  our  com- 
merce, as  if  she  had  been  owneil  by  Frenchmen.  Her  force  was  at  the 
command  of  France,  and  there  can  be  no  doubt,  but  she  would  have 
captured  any  unarmed  American  that  might  have  fallen  in  her  way. 
She  was,  therefore,  one  of  the  objects  of  that  hostility  which  Congress 
had  ;iuthorizcd.  Congress  have  the  power  of  declaring  war-  they  nia_\ 
declare  a  general  war  or  a  partial  war:  so,  it  may  be  a  general  mari- 
time war,  or  a  partial  niaritinie  war. 

This  court,  in  the  care  of  Bos  v.  Tin^y  (The  Eliza,  4  Dall.  i7),  have 
decided,  that  the  situation  of  this  country  with  regaril  to  Frpuce,  was 
that  of  a  partial  and  limited  war.  Tiie  substantial  question  here  is, 
whether  the  case  of  the  Ami'lia  is  a  casus  belli?  whether  she  was  an 
object  of  that  limited  war  r  The  kind  'A  war  winch  existed  was  a  war 
against  all  P'rench  force  found  upon  the  ocean,  to  seize  it  and  bring 
it  in,  that  it  might  not  injure  our  commerce.    It  is  precisely  as  if  Con- 


TALBOT  V.  SEEMAN  (THE  AMELIA) 


123 

general  war  -^  '  '"  ^  ^'^'^  of 

object  of  the  war   as  it  relates  to    h!  ''"^  accomplished  the 

the  armed  force,  we  mU  „tj  ,  '  rn'ht'^r'"'  '""  ^""" 
and  restore  the  property  to  its  JfSl  /tjt  ^  is^  ir^rL""'""; 
consideration:  it  is  only  necessarv  n^..  .  i  V'"'*  '*  ^  subsequent 
so  far  a  lawful  act   as  toTi         '  ,      r  "'^  *^''  *'^*^  ^^P»"^^  «^-'' 

at    east,  for  further  examination.     He  had     ro^-.b    1      '  t  'l:' 
v^  h  ch  ,s  sufficient  to  justify  the  seizure  and  detention     m.Mf  L 
liable  to  be  condemned  by  France   beinr  ,„  tZT  \        1  "" 

of  the  French   she  wis  Jthin  th  ^  r    u  "'''  ''"'^  possession 

captures.    Rut     e     t  ^f^M  T  T      ^T"'"  '"  """"^^  ^•^'""^<^^  •■>-'  - 

on    vessels  .Cichmu  hi      ''  ^^^^"''''''  '^'  ''''^'''''  "^  ^^"^^^i" 
u, .    vMich  may  have  been  captured  hv  anv  such  armed  vess,.|  - 

;-  i..v  armed  vessels  .sailing  under  anthori,,-  from  the  Z^^  o 

^r^cf^;i^l:^l.^'^';l:^^;^^  '-^  ^-"--  --"  vess..,. , ,,p,.,,,. 

»..cira'?;caWr;  «^ria'w7,,P 'u  ha''rh;;n  ''■^'  '-;\'l."^i''-'  i"  '-r  cnrts  ,!,nt 
country.  "  "°"  a1-"'tterl  that  no  such  case  ha.l  occurred  in  thi, 


tliiS 


124 


JUDGMENTS  OF  THE  SUPREME  COURT 


France,  and  which  shall  have  committed,  or  be  found  hovering  on 
the  coasts,  for  the  purpose  of  committing,  depredations  on  our  com- 
merce." Yet,  the  instructions  from  the  Presi  'ent  were  to  recapture 
all  American  vessels.  These  instructions  shi  ,v  the  opinion  of  the 
executive  upon  the  construction  of  the  acts  of  Congress— and  for  that 
purpose  they  were  offered  to  be  read. 

The  counsel  for  the  claimant  objected  to  their  being  read,  because 
they  were  not  in  .e  record.  The  counsel  for  the  libellant  contended, 
they  had  a  right  to  read  them  as  matter  of  opinion,  but  did  not  offer 
them  as  matter  of  fact.'     The  court  refused  to  hear  them. 

II.  The  second  point  is,  that  a  service  was  rendered  to  the  owners 

of  the  Amelia,  by  the  recapture,  inasmuch  as  she  was  thereby  save.! 
from  condimmation  in  a  French  court  of  admiralty.    To  support  this 

ixisition,  the  counsel  for  the  libellant  relied  on  the  general  system  of 

violation  of  neutral  rights  adopted  by  France. 

In  general  cases,  when  belligerents  respect  the  law  of  nations,  no 

salvage  can  be  claimed  for  the  recapture  of  a  neutral  vessel,  becau.^e 

no  service  is  rendered:  but  rather  a  disser\'ice,  because  the  capture! 

would,  in  the  courts  of  the  captors,  recover  damages  and  costs  for  tin 

illegal  capture  and  detention. 

The  principle  up<Mi  which  the  circuit  court  decided,  is  not  denied 

but  it  is  contcn.led.  that  a  service  was  rendered  by  the  recapture.    T  ^ 

show  this,  the  counsel  for  the  Iii>ellant  otTered  to  read  the  messas: 

from  the  Picsident  to  l)oth  Houses  of  Congress,  of  4th  May.   l?),^. 

containing   the   communications    from   <nir   envoys    cxtraordinar>-    ..•. 

Pans,  to  the  Department  of  State,  ami  .sundry  arrets  and  decree-   v 

'  Chase.  J.—I  am  .iKainvt  reading  the  instructions.  Ix-canso  I  am  airainst  l.rj. 
uiK  thv  cxcCTitive  into  court  on  any  occasion.     It  lias  been  docidcd    as   I  ti  .■  ■ 
in  tins  c.nirt  that  mstructions  should  not  he  read.     I  think  it  was  in  a  c.t. 
in~triiftions  to  the  coll.ctors.     It  was  opposed  by  hidRe  Ire<lell.  and  tho  o;...,  - 
tion  acqnic-ced  m  by  the  court. 

I'.^nji.soN.    I.—The   instructions  can  only  be  evidence  of  the   oi>inion   of  • 
executive,  which  is  not  binding  upon  us. 

M.\»SHALL.  C.  J.—I  have  no  objection  to  hfaring  them,  but  the-  will  liav   • 
innnence  on  my  opinion. 

MnonF   J.-Mr.  Bayard  can  sUte  all  they  contain,  and  they  may  W  con-id.-c 
as  [lart  of  bis  argument. 

A|,r,)rrf.— Mav  I  be  permitted  to  read  them  as  a  part  of  mv  speech' 

Tm  Cov«T.-      e  are  willing  to  hear  them  as  the  opinion  of   Mr    Bavar 
nut  not  as  the  opinion  of  the  executive. 

P>i\,<rd---l  acquiesce  in  the  opinion  of  the  court.  My  reasons  for  wislii' c 
to  read  them  were,  because  the  opinion  of  learned  men,  and  men  of  scierrf 
will  always  have  sotiie  weight  with  other  learned  men.  And  the  court  w.  u! ' 
consider  well  the  opinion  of  the  executive,  before  they  would  decide  contrary 


■4 


TALBOT  V  SEEM  \.V  ,  THE  AMELIA  ,  ,r 

the  Government  of  France,  in  violation  of  .e.tral  rijrhts    ar ^  r— e 
d'ed'oS"  V  "'  '"""""'fr'y  '^^  '^-^^  ^^'  '    -•  c  u.cil  of  five  hu'n- 

challr  of  T  '",^        •■'■  '■'■  '^"^^-  ^■^-■''  ^'«-^"-  -that  the 
cnaracter  of  ve>se!5    relar  <  a  tr,  »u^;.         i  , 

t  II  k    J  reiat,.e  to   their  quahtv   of  neuter  or  enemv 

=ha!I  be  determ;ned  by  their  car^o ;  ,„  cor.equ;nce   everv  ve<-ellTnd 

England,  or  of  her  f..-se^Mon_.  sha!!  be  .'eclared  good  prize   wh-eve 
the  owner  of  these  goods  or  rr.erchandise  may  hi- 

Vhe  counsel  for  the  ciau,m„t  objected  to  the  rea.iing  of  tho^e  d- 
patches,  because  they  were  matter  of  fact.     Xo  new  fact  can  be  Vo- -' 
-n  the  writ  oi  error.    Neither  the  pleadings,  n.r  the  -taten-ent  of  fact' 
accompanymg  tr.e  record,  ^ve  notice  of  mtr.i.c.g  this  Z  1^: 
B,  the  act  of  Congress  .  1  f.  S.  Stat.  83,  ^   V,,,  a  -tate  of  th.  "'e 

V  I^--l«r>.>,  3  Da.l.  32i.    ^m  p   327.  Elis-.sonh.  Ch.ef   lunice    .vd 
a  w.u  o:  error  retr:oves  only  matter  of  law.     Arrets  and  de^e- 
orcign  governments  are  matters  of  fact,  and  mu.t  be  pr.vcd  a  ".c 
ord  u-.e  coun  can  na  notice  therr.  unless  shown  in  the  plead,../  ad 
mitted  or  proved      I-recnouU  v.  Ded,r.:  1   P    U'^,.  Vv   4^1     P 
nerd,  V.  Motteu.v,  Doue    ==7      Tv^e    :.n,.  Jc'  u    t    '  "" 

-•7z.;g  r„  ,..,,/  -«•-'■  l-e  =ame  case  m  the  2^i  edition,  pp. 
-  -  /y.  In^nat  ca-e.  the  court  could  not  take  nof.ce  of  the  Jre' 
of  Ju'v.  ,,..,  as  It  ::ad  not  been  given  in  evidence  at  the  trial 

erro  mil  t  "  "'""^  ''  '^"  *^'^"-  '"''^•^"'  "f""^"  ^  -"t  of 
erro.   must  be  upon  tne  .a.-r.e  facts  up..n  uhich  the  judgment  bel^w 

^  prHicated.    3  Bl.  r      .  .05  .  Uilliams  s  edit.  4o/,  ;  ^  ^^^^.^^ 

■^J'*.  .  W..    L       :.  matter  of  .aw.  it  is  not  c,ch  law  a-  i.  bindir-r  ut>  ^ 

^.^>  court.  .  Id   therefore,   they  can   .ot  .ffic:aliv   take    -,-    -^T^" 

Foreign  ,aws  must  be  proved  as  fact^     3  UVxie'-rn    Vy,  ■ ',  Ec   fas" 

Aor.  28<i.  47^^  /fay  v.  >-a;/v.  2  Salk.  ^51  ;  -    c   ^  M-d    l^"-   -  ^ 

t-a.-ict  th,  .        i'o  J'  ^  ^^'-^  ""  ^"'  '^  -^  !^"^*^  to  con- 

t^ccajjc  the  king  has  the  power  .-f  war  .ird  r>ea  e 

^itrrit^'^T?";^  ''^'  ^^""'  ^"'^^^  "^'^^^"^  "-■  -"  ^ 

'- in  nl     ■  P  '""'•  '^"'-'-   '   ^'^    ■'■  ^-"    >^^'tt  require.!  ,.^ 

^c  t;^r:i^n:r'^  ^^^^^'^^  ^" '  ^-'-- ^'^ '^^  ^---' ^^^ 


126 


JUDGMENTS  OF  THE  SUPREME  COURT 


On  the  contrary,  it  was  said  oy  the  counsel  for  the  libellant,  that 
thi  e  differs  from  evidence  offered  to  a  jury.  In  chancery,  if 
e\  _e  is  not  legal,  the  chancellor  will  hear  it,'  but  will  give  it  no 
w.  -tit.  The  pamphlet  containing  the  dispatches  is  offered  to  be  read 
not  to  show  what  are  the  municipal  laws  of  France,  but  what  is  the 
law  of  nations  in  France;  to  show  how  it  has  been  modified  by  that 
government.  We  are  before  this  court  as  a  court  of  admiralty,  and 
not  as  a  court  of  common  law.  All  the  world  are  parties  to  a  decree 
of  a  court  of  admiralty.  Bernardi  v.  Motteux,  Doug.  560  or  581 
This  court  is  now  to  decide  by  the  law  of  nations,  not  by  municipal 
regulations.  All  the  cases  cite.l  against  us  are  cases  in  common-law 
courts.  But  courts  of  admiralty  take  notice  of  foreign  ordinances 
which  affect  the  law  of  nations,  without  their  being  shown  in  evi- 
dence. The  Maria.  1  Rob.  288  (Eng.  ed.  341)  ;  and  s.  c.  1  Rob  304 
(Eng.  ed.  363). 

The  object  in  reading  these  dispatches  is  to  show  that  the  law  of 
nations  was  not  respected  in  France;  that  the  construction  of  their 
courts  of  admiralty  was  such,  that  their  decisions  could  not  conform 
to  the  law  of  nations ;  that  the  law  of  nations  has  been  so  modified 
in  France,  that  there  ua.s  no  certainty  of  indemnity  for  neutrals   niui 
that  by  the  decrees  an.l  arrets  of  that  govemment,  the  Amelia  woul.! 
have  been  conden,ne<I.    They  are  offered  as  the  official  communications 
of  our  authorized  agents  abroad  to  t!ie  executive,  and  by  that  depart- 
ment communicated  to  Congress,  and  published,  in  conformitv  to  mi 
act  of  Congress  (  1  U.  S.  Stat.  612),  for  the  information  of  t'he  citi- 
zens of  the  United  States.    This  act  of  Congress  has  made  them  proper 
evidence  before  this  cnnrt :  who  are,  therefore,  bound  to  notice  then, 
On  the  subject  of  admitting  foreign  ordinances  in  a  court  of  admirn'tv 
no  diflRculty  ever  occurred.    The  objections  are  only  to  private  munici- 
pal regulations.    Such,  it  is  admitted,  must  Ik.  proved  as  facts,  but  not 
when  they  are  offered  as  explaining  the  law  of  nations.    In  The  \fari, 
1  Rob.  288  (Am.  ed.).  this  very  decree  is  cited;  and  it  is  immnteri,! 
to  U.S.  whether  we  read  it  out  of  the  dispatches  or  out  of  the  book 
which  the  opposite  counsel  have  already  cited  for  other  purposes     Rv 
the  same  rule  that  they  read  pages  57  and  126.  we  may  surelv  rea.' 
p.Tge  2^S. 

On  the  part  of  the  daimant  it  was  replied:  That  this  decree  is  n't 
nn  act  of  Congress,  nor  the  law  of  nations,  but  simply  a  law  of  France 
The  record  is  confined  to  the  facts  which  originallv  came  up  with  the 


TALBOT  V.  SEEMAN-  f  THE  AMELIA) 


127 

r  „tzL"r;,?.rz,rr'  ^ "-"-'  "^"  -  »«^- 

Housc  of  Lord,    „„,hi;/l  V      '"  "'"">■■  ""  ™  •PP'"'  t»  "lie 

cur,  wa,  bound  ,o  note   7„  .hfcrsCSt"  .T""'  "  ^''"'  "" 

bound  as  a  coun  of  admirX  ,„  ..^    '='""""»-^"-  "n"  "  as  mud, 
,  question  where  th-l  la  J  !!,'  !  T"  °'  ""'  '""■  "'  "«»"'•  -» 

coLs  are  bouud    a    to^e  t„   '  "".bM"'"  •'■  "*'="  ""■°""--'- 
binding  on  eourts  of  adm^nllty  '  ^  ""'™'-  "=  ">""•'■ 

b.i'rt""  ^hf  ^tlo'n'  trtf 'V""  "='""  »'  """"  -  "  -^. 

.?nr  ^re^:?,^retl^fXr.'"  ir/;r;r"  •"  r-^ 

.he  14th  of  December   1799  and  ..n  ,  "'  repealed,  until 

.™e  of , be  capture,  :„r.:ri?tpTr-:  ;"i^i;^  ;.:::-•  f,' 

in  the  append  X  t.)  vn!    ^  o."  d^u         T  „  ^^-     ine  tacts  stated 

It  IS  not  necessan-  to  show    that  th*.   4».^;,-,  -i 

been  cndemned      To  entitleVr  '""""^  '^"^'"'>-  '^^^^ 

;j.  .he  was  i„  a  ^':!:::.::^:^:.:  ^.Zr^::'::::^ 
;.trr.r,^i'tra.:"fzS  tafs^^^-' r'''°-^^^ 

general  conduct  of   France  and  of  the   Fr     I  ^■°"'^^'""^»">"-     The 
-wards  neutra.  has  ^..^Z.:l:'^^^,-^.^,^-'-^^y 

--t  of  Con.re..  of  the  2d     ? Tfa   -h"  "W       T?"  *'"'"  ''^  '^'-• 
government  of  the  t,avv  of    he  I'    /  Z^'  "'''"^     '"  '^"^^  ^'^'-  '^' 


71'i).  by  which  it  is  enacted,  "that 


to  the  citizens  n 


f  the  Ln.ted  States,  or  to  the  c:ti.ens  or  subjects  of 


!"'r  ^ijo'l-  belonpin^ 


m 


128 


JUDGMENTS  OF  THE  SUPREME  COURT 


any  nation  in  amity  with  the  United  States,  if  retaken  from  the  enemy, 
within  twenty-four  hours,  the  owners  are  to  allow  one-eighth  part  of 
the  whole  value  for  salvage,  etc.,  and  if  after  ninety-six  hours,  one- 
half  ;  all  of  which  is  to  be  paid  without  any  deduction  whatsoever  " 
In  the  case  of  Bas  v.  Tingy  (4  Dall.  37).  it  was  decided  by  this 
court,  that  France  was  to  be  considered  as  an  enemy.  The  case  of  the 
Amelia  comes  within  the  very  words  of  this  act  of  Congress.  She  is 
a  ship  belonging  to  citizens  of  a  nation  in  amity  with  the  United  States, 
retaken  from  the  enemy,  after  a  possession  of  ninety-six  hours. 

By  the  act  of  Congress  of  25th  June,  1798  (1  L.  S.  Stat.  572).  prop- 
erty of  American  citizens,  recaptured  by  armed  merchant  vessels,  is  to 
be  restored,  on  the  payment  of  not  less  than  one-eighth,  and  not  more 
than  one-half,  for  salvage.  And  by  the  act  of  the  3d  March,  1800 
not  less  than  one-sixth  is  allowed  on  recapture  by  a  private  armed 
vessel,  and  one-eighth  by  a  public  ship-of-war.  If,  then,  the  recapture 
of  this  vessel  was  a  lawful  act.  and  if  service  was  rendered  thereby  to 
the  owners,  the  recaptors  are  entitled  to  salvage,  and  the  rate  of  that 
salvage  is,  by  the  act  of  Congress,  fixed  at  one-half  of  the  value  of 
the  ship  and  cargo. 

On  the  part  of  the  clahmnt,  it  was  ..aid.  that  if  France  and  America 
were  at  peace,  the  recapture  a  as  not  authorized  by  the  law  of  nations 
The  claim  of  salvage  must  rest  on  two  grounds:  1.  A  right  to  interfere. 
2.  A  benefit  conferred  on  the  owners. 

I.  It  is  admitted,  that  a  belligerent  has  a  right  to  detain  a  neut-i! 
vessel  and  carry  her  into  port  for  the  purpose  of  examination.  The 
possession  of  a  belligerent  must,  by  third  parties,  be  con-^idered  i^ 
awful,  whatever  may  be  the  motive  or  intent  of  such  posses  ion  ( ^ 
Woodeson.  424.)  The  belligerent  has  a  lawful  right  to  search  mer- 
chant vessels,  and  this  right  can  not  be  considered  as  injurious  to  the 
fan  neutral  trader.  Resistance  to  such  search  is  unlawful,  and  such 
resistance,  a  rescue,  or  an  escape,  are  sufficient  causes  to  condemn  the 
r^tral  vessel.     (Vattel.  lib.  3.  c.  7.  §  114.  p.  507:  The  Maria.  1  Rob. 

The  act  of  the  recaptors.  then,  being  in  aid  of  the  unlawful  resistance 
of  the  neutral,  must  in  itself  be  illegal.  The  courts  of  the  captors  onlv 
are  competent  to  decide  the  question  of  prize  or  no  prize.  American 
citizens  have  no  right  to  interfere,  and  wrest  the  neutral  vessel  from 
the  possession  of  the  belligerent. 

The  French  have  been  represented  as  pirates,  hostes  humani  generis. 


TALBOT  V.  SEEMAK  (THE  AMELIA) 


129 

But  If  France  has  waged  so  general  a  «,=.r  ^„ 

England  done  the  sanfer  U  e  find  i„  Z  °"  "'"''■^'  P^°P^^'  has  not 
is  to  accrue  to  British  subjlts  bV.u '  , T"''  ''"'  "'"^  ^  '^"^«» 
France  must  be  presun^ed  to  re^p^^^  le  ,a  T""'  '''^  '"^'"^  '"^'^ 
the  restitution,  r/,.  5.,,,^  rT  ^1  r  "'"°"'  '"^  '°  ^'"« 
695;  but  when  salvage  is  to  be  given^o  BriSr  "  ^'''''''''  '  ''■  ^• 
property,  then  it  appears  tha:  France  has  tstaV"''''^;^'  "^"'^' 
of  nafons.  and  there  is  no  chance  of  e  caie  frlT  '"'  ''''  '^^• 
m,ralty.     The  T,vo  Friends,  1   Rob    Z     ri     T  '°"'^'  °^  "^- 

246.  '       *^°*'-  -^2;  ^''^  ^ar  0«j*an,  2  ibid. 

But  it  is  contended,  that  the  court,  rf  p 
according  to  the  decree  of  the  IS^h  i  T:  ^^'^"''^  ''^^^  decided 

to  the  law  of  nations.    Ths    'rot  to t"""^''  ''"'•  '"'  "°*  ^*^^-<J'"g 
ever  tyrannical  the  condu     of    '  L^  ''"""''  =  '"^  ''  ''  *^^'  '^o- 
lawfully  interfere,  unless  .hehersdfr"'  "7  ''•  "°  "'^"^^^  "" 
rights  are  aflFected;  and  even  then    ni    M  '"/"'''''  °'  '^^^  P'-^P^^y  °r 
must  be  redressed  by  th     "0'"^/"^ '^  ^''^ '"i^O' 

war.  What  was  the'conduc  of  oTrlr  '  "'^  ^'  "^°''^*'-  - 
first  chose  to  negotiate,  a^d  then  to  T^'"""'?'  '"  ^"^^  a  case.'  It 
the  negotiation  wis  begun  aVthe  in  ^  ''T  ^°'  ^'^^^  ^'  ^^e  time 
in  the  view  of  the  Satue  !vh  'Tk'  ''"'"  ''"'  *"  ^^-^  f"" 
hostility:  but  no  citizS  could  eo  one tT'  "^""  "'"-^^  "^ 
i«d.    The  liabiiitv  of^he  w"  t  ?  ^''''""^  ^'^"^  *^^  ^"^hor- 

of  admiralty,  created  no  r-ghMnCaVaTnT^^^^^^^^    '"  ^  ^--h  court 
'f  that  condemnation  was  certain  '°  '^P'"'"  her.  even 

^actitd  -r;:;  Hz  ro ';  t  *t"  ^-^^  ^  --'-•-■  The 

in  the  month'of  Apr  1^'  Zt,^  't''  ^^^  Calcutta,  in  Bengal 
manufacture  of  tha'  coun^:.  wL"  '  ""7''  °'  ''''  P""^"^*  ^-^ 
is  not  stated  to  be  one  of   hi'  no  "'""^'^      ^"^^^'-    ^ut  Bengal 

the  province  of  Beng^itL*^^'!""""  °?"^'^"^-  ^^^°»  '-^  ^inS. 
does  not  appear  how  fir  the.'t  k"  "^  ^°^""'^  Princesf  but  it 
It  is  true,  th^t  the  ill  speato  aic  Tt"  '"^^  ''  '''  ^"^"sh. 
in  the  East  Indies,  but  itTe.  not^nH  f  '""^  ^"  ^"^"^h  port 
Bengal  has  been  subject  d  to  L  Br  ti  7'  "'  %'  "'°'^  "^"""^^  ^^ 
port  from  whence  he  ves^e  taH  t 'T""'  ^'''"^''-  ''  '^  "°t  the 
nnality.  as  being  the  produc  1  '  ''^l'\'''''''  ^^e  car^o.  but  its 
^'oes  not  appeaf.  that  he  w/^'  '"  ^."g'^'^  P-'--""-  Hence,  it 
the  decree  of  the  I8th  anuarT  79;"  ""'^  ^°  condemnation  under 
.      "ary,  1798.  and  we  can  not  presume  that  she 


130 


JUDGMENTS  OF  THE  SUPREME  COURT 


would  have  been  condemned.  The  French  captors  did  not  pretend 
she  was  liable  under  that  decree,  but  sent  her  in  to  be  judged  accord- 
ing to  the  laws  of  war;  that  is,  according  to  the  law  of  nations  as 
applicable  to  a  state  of  war;  and  there  being  no  fact  stated  to  the  con- 
trary, we  are  to  suppose,  that  she  would  have  been  so  judged,  and  not 
otherwise.  To  have  nterfered  en  our  part  to  prevent  this  would  have 
been  a  just  cause  o;  hostilities  against  ur.  No  citizen  ought  to  be 
allowed  to  come  into  our  courts  to  claim  a  reward,  for  an  act  which 
hazards  the  peace  of  the  country. 

If  benefit  be  the  criterion  of  salvage,  then  the  greater  the  service 
the  greater  ought  to  be  the  salvage.  But  if  the  construction  given  by 
the  opposite  counsel  to  the  act  of  2d  March,  1.799,  be  correct,  then  the 
^me  salvage  is  due  for  the  recapture  of  a  clear  neutral,  as  of  a 
belligerent.  And  yet,  in  common  wars,  no  salvage  at  all  is  due  for 
the  recapture  of  a  neutral. 

Every  neutral  nation  has  a  right  to  choose  her  own  manner  of 
redress.    We  have  no  right  to  interfere,  or  to  decide  how  far  her  ves- 
sels are  liable  to  condemnation  under  French  decrees.     She  may  be 
willing  to  trust  to  the  chances  of  acquittal  or  indemnification.     Wo 
have  no  right  to  legislate  upon  the  property  of  a  foreign  independent 
nation,  and  to  say,  that  we  will,  whether  you  consent  or  not,  rescue 
your  vessels  from  the  French,  and  then  make  you  pay  us  salvage 
(Vatt.,  hb.  2.  c.  1,  §  7,  p.  123.)     If  an  act,  intended  solely  foi  mv 
benefit,  is  advantageous  to  another.  I  am  not  entitled  to  reward.     {The 
Vryhcid.  2  Rob.  27,-A.)     In  order  to  ground  a  claim  of  salvage    tlie 
danger  of  the  property  must  have  been,  not  hypothetical,  but  absolute  • 
not  distant  and  uncertain,  but  immediate  and  imminent:  the  act  of 
saving  must  have  been  done  with  that  sole  intent,  and  must  have  bre;, 
attended  with  labor,  loss,  expense  or  hazard  to  the  salvor.    The  AwcIm 
was  taken  by  Captain  Talbot,  and  libelled  as  a  French  vessel;  his  ob- 
ject was  not  to  save  a  neutral,  but  to  capture  a  belh^  rent.     Under 
such  a  mistake,  he  might  have  a  right  to  examine  her  further,  hut 
the  moment  she  proved  to  be  neutral  property,  he  ought  to  have  re- 
leased her.    His  mistake  can  be  no  ground  for  a  claim  of  salvage-  it 
IS  a  mere  justification  of  an  act  of  force,  and  as  such  may  save  him 
from  the  payment  of  damages  and  costs.     In  this  case,  there  was  no 
danger  to  the  property,  no  trouble  in  saving  it.  nor  any  intention  to 
benefit  the  owners.    In  Beawes'  Lex  Mer.,  vol.  1,  p.  158.  it  is  said 


TALBOT  v.SEEMAN  (THE  AMELIA) 


that  to  support  a  claim  of  salvage    th- 

hazard,  and  must  be  saved  bv  m  !  ''"'^'  ""^^  ^^  'n  evident 

The  owner  was  a  ciSn  of        "•  T'  ^''  '''''  ^^'^  ^'«=-- 
have  had  his  election.    Where  is  the",/''"''T  "'^'°"'  ^"^  °"&^t  to 
salvage  to  one  belligerent  tak.W  froj  "  1  ^^^^'^onty  that  Lows 
tral?    By  the  state  of  the  case   thT  '  '^'  ^'"'^'^'y  ^^  ^  "eu- 

belHgerent  powers.    If    he  capl  .1''"  r  T  "'"^^'  ''  ^o  all  the 
^en  given  up.  upon  the  aut T  W  '^^  ^^f  ^^  '^\^^^'  ^^e  must  have 
Dall.  6,  without  any  compensat  on  for        "^'"  °^  ^^'"'  ^-  '^'**^.  ^ 
c  ted.  the  only  one  againsrusTr.f^CrT     1."°"^  '"^  ^^^ 
that  case.  Sir  William  Scott  savs  that  «-IaM    '      ^  ^  ^°''-  ^^-     I" 
of  h,s  court  to  give  salvage  on  ;ecal  e    f        ''''  '^"^  '''^  P^^'^t-'^e 
the  hands  of  the  French ;  but  t  a    such         """T'  ^^^^^^^  «"*  of 
of  the  law  of  nations;  and  upon  1!".    "  "°'  '^'  '"''^^"'  P-««ice 
^'on  of  a  clear  neutral  f rom^      and    7th''"'''^'  ^'^^  '"^^  "»'-- 
servce  rendered  to  him;  inasmuch  as  L/         '"""^'  ''  "°  ^^^"^^'^^ 
Pel'ed  by  the  tribunals  of  his  own  coum  ""^'^"^  "°""  •"  """- 
neutral  into  port,  to  release  him    vvi  h  co7'      T  ''  '''  '^^"'^^  ^he 
junous  seizure  and  detention.    But  ^,  at      '      '""'^"  '""^  '"^^  '•> 
that  he  might  shortly  change  h.^cour^e  of  h''"'"'  '°"^^^'-'  ^'  «« 
so  that,  very  probably,  had  tha    case  Lh'!,'""'  °"  "^^*  ^"^ject 
't  would  have  been  d'ecided  differ^tl      "  ''"h  "^  J"  *'^  "^'^^  ^^^ 
cde  upon  the  departure  of  other  nLnfV^^''''  '  "^^'  ^°  ^e- 
whatever  evidence  of  such  departure  h  "I    ""  '''  ''"  "^^  "^^>°-- 
vanance  in  the  decisions  of  the  Wer  coTT  ^'''u^'    '^^'''  ^'"  ^  - 
P"t  upon  such  a  footing  as  to  1^1  ?     '''  "  ''^°"'''-  therefore   be 
of  the  inferior  courts^     ThlT"     '"";'"' P'^'"  *°  ^" '^e  judge' 
creature  of  bis  own.^whic,yh:  h  m;:;ror:    '"'■  '^'''"'   ^-«   '^  ^ 
s.tuat,on  of  affairs  will  allow.  ^    ""'''  '°  '^'"^^e,  when  the 

rend'e^eTt'"acL'un\t'7hetXTr7r'  °"  ^'^  ^^°""^  ^^  service 
towards  neutrals.  But  in  bl  c,se  T''  '''''''  """"^^  — sed 
he  .dea  of  hostility  between  Fr  nee  and  R  T"'  "'  '''^^^  ^'^I"^- 
^-n.  gave  no  right  to  recaptu  The  ,  ^  ^^'  '"''  ''"  °^  "^- 
Congress  must  be  construed  stnctlv  T  T  ""^^^  ^^"^  ^^s  of 
prov,s,on.s.  Neither  the  execu  "e  "^nor  ;°".'"''  ^°  *'''='''-  «P^«-- 
''-ve  a  right  to  alter  them  '  "°'  '"^'-'duals.  nor  the  courts. 

-  ^--var  is  not  authorised  by  Congre..  there  is  peace.    It  was 


132 


JUDGMENTS  OF  THE  SUPREME  COURT 


not  contemplated  by  any  act  of  Congress,  that  our  vessels  should  cap- 
ture Hamburg  vessels.  The  mischief  to  be  remedied  by  the  act  of 
May  was,  that  the  small  armed  vessels  of  France  were  hovering  on  our 
coasts,  and  taking  our  vessels  almost  in  our  ports.  The  act  of  Con- 
gress has  completely  met  the  evil,  by  authorizing  the  capture  of  such 
French  vessels  as  had  taken,  or  were  found  hovering,  for  the  purpose 
of  takmg  our  vessels.  This  act,  therefore,  does  not  authorize  the  cap- 
ture of  a  Hamburg  vessel.  There  is  no  law  which  authorizes  a  cap- 
ture for  two  purposes,  viz.,  to  be  condemned  as  a  French  vessel,  or  to 
be  subjected  to  salvage  as  a  neutral.  he  Amelia  was  not  navigating 
under  the  authority  or  pretended  authority  of  France:  she  was  en- 
gaged m  a  lawful  trade.  But  if  the  French  took  possession  of  her 
under  suspicion  of  unlawful  trade,  that  gave  us  no  authority  to  take 
her  from  the  possession  of  France,  the  property,  under  the  law  of 
nations,  not  being  changed.  The  taking,  being  unlawful,  can  support 
no  claim  of  salvage. 

The  act  of  July,  1798,  authorizes  onlv  the  capture  of  armed  French 
vessels,  and  confines  the  cases  of  recapture  to  the  ships  or  goods  of 
citizens  or  residents  of  the  United  States.  The  capture  can  only  be 
justified  by  the  doubtful  character  of  the  vessel,  and  as  soon  as  that 
was  known  to  be  neutral.  Captain  Talbot  ought  to  have  dismissed  hei  ■ 
the  detention  afterwards  was  unlawful,  and  will  not  justify  a  decree 
for  salvage.  This  vessel,  it  is  true,  might  have  been  used  to  distress 
our  commerce,  and  this  might  possibly  be  an  excuse  for  detaining  her 
or  even  dismantling  her,  but  will  not  entitle  him  to  salvage 

If  this  vessel  was  lawful  prize  to  France,  then  France  has  a  claim 
for  indemnity;  but  as  she  has  made  no  claim,  we  must  presume  the 
vessel  would  have  been  restored  by  her  to  the  owners 
.u^ru  T  °^  ^°"^"^  °f  ^*"<^h  2.  1799,  upon  which  the  counsel  fo- 
the  libellant  rely,  does  not  contemplate  a  case  like  the  present     That 
IS  a  permanent  law.  not  made  for  the  present  war  only,  but  inten.ic! 
to  apply  to  all  future  wars.     It  could  not.  therefore,  intend  to  ^ive 
salvage,  on  the  recapture  of  a  neutral  from  a  belligerent,  which  is  not 
given  by  the  law  of  nations,  and  which,  it  is  allowed  on  all  hands   n 
given,  this  war,  for  the  first  time,  only  on  account  of  the  conduct"of 
France  towards  neutrals,  and  will  cease,  when  that  conduct  shall  he 
altered.     Besides.  ,t  would  give  the  same  reward  for  taking  the  prop- 
erty of  a  neiUral  out  of  the  hand  of  his  friend,  as  out  of  the  hand  of 
his  enemy.     The  word  "enemy."  in  the  7th  section  of  that  act.  mean, 


TALBOT  V.  SEEMAN  (THE  AMELIA) 


.  133 

If,  then,  this  is  not  a    tat  of  our  ally, 

the  question  of  benefit.    I„  the^courrL."^  '^l""^''  """  """''  '''='''  '« 
act  of  Congress:  not  a  word  was  sa^        "^  '^''  '^''^  "'''""y  °"  ^he 
Let  us  then  consider  the  c  aim  oV^l?''''""^  '^'  ^^-^'^  ^^"^ered. 
there  must  be.  1    A  Jawf.7r    !  ^"""  *""'''''■    To  support  thi. 
or  implied.  '"^"'  -ns.derat.on ;  and  2.  A  contract   exp'ei 

To  make  the  consideration  lawful    it  m.«.  K. 
f  /-"-'.  it  must  not  be  contrary  to  , aw     Itt,  '^.P*™'"^^  ^^  '^"'• 
law,  to  take  the  property  of  a  nentr!.       .     r  ?'  ^"'horized  by  our 
friend,  and  it  is  i„  direct  opposirnt'      v  "'  '''  P°"^"'°"  °^  "- 
the  peace  of  the  country.    It  ,s  no   alle^  T  ?'  "u  ''  ^"'^^  ^°  --'"'t 
contract;  and  a  contract  cal  not  be  S' ^' '''"''  "^^  ^^  -press 
which  she  was  taken,  viz..  to  b"    ondem'  h   '  '""^"'^  ''''  '"^«="*  ^'^h 
excludes  the  idea.    Nor  can  an  Zr^T      ''  ^  ^^'"'^'^  ^""^^  v«sel, 
t-ning  her.  because  that  wa"  a  s  a"e' of  ;"'"'^'^  "'^^^'  '^'^  ^^e  re- 
the  ground  of  a  reward.  '^"'"''  ^''"^^  can  not  be  made 

the^rm^unt'of  ^vage  mu':  de^ef;"'  "T  ^  ^"^"""^  ^-'^  then 

's  said,  that  in  cases  of  unLLTt  ""^  ^''*^'"'^'  '^'^-  -'^0.    It 

-.V  .oes  to  the  crow/  tITp^ZITTII' irr'^'^'  '''  ^-P" 
"nes  referred  to  the  court  to  fix  thtr  ^  i  ^^^'  ^"^  '^  '^  ^""^e- 
'ows  then,  that  the  propertv  goes  to  the"  °'  '''^  "P^°^^-  ^^  ^°'- 
can  fix  the  reward;  but  our  code  Jiv!.':  ^XT",'  '"'  '"^^  ^'^"^ 
nor  does  the  state  of  hostilities  itweenS.  "'"  '"  ^''^  '^^^^• 

closed  on  the  record,  justify  it     But  if  th.  H  °  ?""*"^^'  ^^  d'"^' 

'he  misconduct  of  France. 'are  toll  admLJ?'  '"^  '^'  "°'°'-''^*y  '^f 
t-red.  .vho  can  say  it  was  wo  t^SQ^^  "1° '"i".'  '  '"'''  *^°"- 
°f  sales  of  the  ship  and  cargo  .'Nrh^.th;  "-'^^  ^^°^^  ^'"^"^ 
^•■•nger  to  the  property   nor  L  .^    J  '*''^'"'*=  rendered,  the 

enormous  a  reward     The  dee'  of  Fr  °"  '"  'T'  '''  ^^"  ^^^^'^y  - 
and  so  no  danger.    If  the  W/.  '  ""^'^'  ''^  °"'y  '«  ^^^^"^^ 

the  French  courts,  then  no  smi  1    ""  "^  """"^  ^°  condemnation  in 
-'vage  ought  to  be  aZed  ""  ''''"'''"^'  ^"^  -"^equently,  no 

^■'^^^■'on  Z,^^^^^^  then  the  recapture  is  a 

--  '^  ^^  "o  justification  ^Hiol^^-^r^r  ^^^  - 


134 


JUDGMENTS  OF  THE  SUPREME  COURT 


illegal  power  to  take,  given  by  France  to  her  cruisers,  does  not  author- 
ize us  to  retake.    In  the  case  of  Bas  v.  Tingy  (4  Dall.  37),  the  reason- 
ing o    the  court  seems  to  admit  that  the  act  of  2d  March    1799   wi'l 
..ot  apply,  m  the  present  state  of  hostilities,  to  recaptures  of  the  ves- 
sels of  nations  in  amity  with  the  United  States,  unless  the  owners 
are  residents  of  the  United  States;  because  there  could  be  no  lawful 
recapture  of  a  neutral  from  the  ha  d  of  a  belligerent.    Judge  Moore 
m  delivering  h.s  opinion  in  that  ca:.e,  says,  "It  is.  however,  more  par- 
ticularly urged  that  the  word  'enemy'  can  not  be  applied  to  the  French  • 
because  the  section  in  which  it  is  used,  is  confined  to  such  a  state  of 
war  as  would  authorize  a  recapture  of  property  belonging  to  a  nation 
m  amity  with  the  United  States,  and  such  a  state  of  war  does  not 
exist  between  America  and  France.    A  number  of  books  have  been 
cited,  to  furmsh  a  glossary  on  the  word  enemy;  yet,  our  situation  is  so 
extraordmary   that  I  doubt  whether  a  parallel  case  can  be  traced  in 
he  histon^  of  nations.    But  if  words  are  the  representatives  of  idea, 
let  me  ask.  by  what  other  word  the  idea  of  the  relative  situation  of 
America  and  France  could  be  communicated,  than  by  that  of  hostility 
or  war?    And  how  can  the  characters  of  the  parties  engaged  in  ho.- 
tihly  or  war.  be  otherwise  described  than  by  the  denomination  of 
enem.es.     It  ,s  for  the  honor  and  dignity  of  both  nations,  therefore, 
tha    they  should  be  called  enemies;  for  it  is  by  that  description  alone, 
that  either  could  justify  or  excuse  the  scene  of  bloodshed,  depredation 
and  confiscation,  which  has  unhappily  occurred;  and  surely,  Congress 
could  only  employ  the  language  of  the  act  of  June  13,  1798  towards  a 
nafon  whom  she  considered  as  an  enemy.     Nor  does  it  follow.  th..t 
the  act  of  March,  1799.  is  to  have  no  operation,  because  all  the  ca;es  in 

n^^jr^     °^T'  "'  "°'  '"  '''''''"''  ''  '^'  t™«  °f  Passing  it. 
Dunng  the  present  hostilities,  it  affects  the  case  of  recaptured  prop- 

,tl^T"l!°  °"r7"  "'"'"^'  ^"''  ■"  '^'  '^'"'  °f  -  future  war. 

oTL  in  '''■^'     'u°  *''  '^"""  °*  '■^^''*"'-^''  P^P-rty  belonging 

to  a  nation  m  amity  with  the  United  States  ' 

And  in  the  same  case.  Judge  UashtBjrton  observed,  "that  hostilities 
may  subsist  between  two  nations.  ..or.  .-nntined  n  its  nature  and  " 
^  being  hm,t.d  as  to  places,  p^n^  .„.  th^.  :  and  thic  .  ^,,, 
properly  termed  ,m,^rfect  war  ,.^,  ,or  .oiemn.  and  becauJ 
hose  who  are  authori.H  to  co™  n.,.::^.  ,,,  ^^^er  specia  au- 
tonty.  and  can  go  n.  further  :^  ..  .,  ,^,  ,,  their'^om.is- 
s.on.       And  again  .■:-    sa^=,  •  :t  .«,  HK-..^^  .^^  .^-j.  ^^at  the  7th 


TALBOT  v.SEEMAN(TH£  AMELIA) 


section  of  the  act  of  March    17Qg        ^ 
to  preexisting  laws,  could  not  the'n'r.W     7  "'"  ^'^''''^-  ^"°^'"'"g 
■ty  had  been  given  to  recapture  ft  dlv       '  f^i  ''"''"'  "°  -■"- 
th.s  argument  was  strongl^and  fTrffv  T        /T  "^^  ^^^"^'''  -^ 
case  provided  for  by  this  law  Ir^^u^'"'"^'     ^"'  ^«^^"se  every 
'ow.  that  the  law  should    ot^::;!''^^"  f'''"''  '  '^'  ^^  ^«'- 
the  rest  whenever  they  should  "Le^j""''  ''  '''  -^^'  -^^  "PO" 
bracing  a  variety  of  subiect.  •  nr>f       ^     "  's  a  permanent  law,  em- 
with  France  onl'y.  but  in^Te    JioT^o  :;  'fut"'^'°"  ^°  '''  ^^"^"^  -'" 
any  other  nation.     It  might    tl^^  Zl  T  """^  ""'''  °^  ^^'^^ 

recapturing  of  American  vessel  L'^  '^'"""''^  ^"°^^  ^^'-^^e  for 
been  authorized  by  law.  tho^i  tTouTd""'  "'"'  '^^'^  ^^^-^^'3' 
the  vessels  of  friends :  and  wWv'°cl  ""'"-diately  apply  to 

the  United  States  and  France  orTnv  oth'  ""  ''°""  ^"'^^  ^^^--n 
the  law  of  nations,  or  specialM  v  '  "'"°"'  ^''  ^'^cording  to 
«'f  friendly  vessels  it  Tgh  ^n  hT;  ^^'^J-tify  the  recapfure 
apply  to  them;  which  furnishes  J  .LT''  ^"^^  '^'"'''^^  P^P^ety. 
act.  The  opinion  which  I  Se red  at  New  v  T  '°"^^"''^^'°"  °^  '^^ 
was.  that  although  an  American  vessel  co^ll:  '"  ''f"'  "  '■^^'"'"•' 
a  neutral  vessel  from  the  French  T  '°"'^."°'  '"^t.fy  the  taking  of 
subsisted,  nor  the  spec  al  co^  "'"  ""'^^^^  the  sort  of  war  that 

authon.ed  the  prZZ^ZTZZlZ  ""''''  '''  ''"'-''-^  --^ 
applied  to  recaptures  from  France  a   .n       '""''""  °'  '^'  ^''  °^  ^799, 
hy  Congress.    And  on  b"h  point''  mv  on"""''  '"  '"  ^"^  ^""^°"«^ 
rather,  has  been  confirmed  brthe  verv  ah,'"'?  """"^  ""^''^'*-=  °^' 
ject  has  lately  undergone  in  this  co2  u  ^'^^"^^'or.  which  the  sub- 

Similar  sentiments  werla^sl  e^n    '  Z^u"  ''''^''  ^^^"^  ^V  decree- 
Paterson.  in  the  same  case     pV^^r^^  ^y  J^^ge  Chase  and  Judge 

-ult.  that  the  act  o    March  277^;  °''"""^-  '^  ^^^  ^'-''y  '« 
'n  this  case.  '^'  '^^-  ^^"  tiot  be  the  rule  of  salvage 

French  „.„  „,  ig,^  |.  J'^     '^^     -   An„„c.,„   »vo,s,   and   ,he 
P'^-addp^.^  r-/j;f;.'.&.f--''  was  ar^ed  once  be.-o.e.  i„  .hi,  cour,  at 


tf      1 


136 


JUDGMEiTS  OF  THE  SUPREME  COURT 


619  622.  649,  650.  554.  The  opposite  counsel  have  cited  and  relied 
on  Robmson's  Reports,  to  show  what  was  the  ancient  llw  oTf^c^ 
and  sure  y.  we  have  as  good  a  right  to  cite  the  same  book  toXw 
what  .s  the  present  law  of  France.  In  The  Mana.  1  S^  tJ" 
arret  of  France  .s  cited  and  argued  upon  by  the  judge. 

The  cases  c.ted  by  the  opposite  counsel  to  show  that  foreign  laws 
must  be  proved  as  facts,  are  all  cases  at  common  law.  or  rela Tto  tl 
mere  municipal  laws  of  a  foreign  country;  and  are  not  such  as  1  to 

St:  inTvT-.r''^  '^^  °'  ""^°"^'  ^^  ''^'  -"-"^  ^^^^  t 

h.oi.  foreign  country,  authenticated  as  this  is^  Tn^oithl 
l^jslature  of  our  country,  has  been  refused  to  be  consid^ed  by  a 

As  to  the  objection,  that  the  cargo  does  not  aooear  tr.  K.  n, 

*a.  th.  whole  o(  ,h.  province  of  Boigal  h„  bee„  ,„bj„,rf  ,„ Te  do 

nrllT'  ^1      .  notonous  to  all  the  world:  Congress  have  ex 

rniirt  ^<  .u    1         ,  strange,  it  this  court,  sitth?  here  a«  a 

.he  law  o,  „a,io„,.  ,he  „eu,4  J«  J"  '  "  „  li  t',rZ  "^""u 
Han,a„,  a„<,  eo....    B„.  „„„„  ™^;':::r;,^'  'LTlt 


TALBOT  v.SEEMAN  (THE  AMELIA) 


by  powerful  inference  that  if  th  '  ^^^ 

neutral  with  damages  and  o  ts  TaC  "°"'l  "°*  '^^  -^ored  the 
bring  the  Amelia  within  this  in  f  ^    °"^^'  *°  "^  ^''^wed.     To 

;|;at  she  would  not  have  bL  .tS  "-'^  T'^  ""^^^^^  '°  ^^^^' 
the  court  should  take  into  crnside^H  .^  ^""'^'^  ^"^^  <^°««-  " 
ar^.  1798,  and  the  fact  "harthe  '  '"''■^'  °^  '^^  ^^^h  of  Janu- 

jHsh  possession,  there  i;  no  doJb  ^  IZ  ''/  ^L'^^'^"  °^  ^  E"- 
damagcs  and  costs,  she  would  have  hlen  /^  '^'"^  ^"'"'^'^  ^-'h 
to  her  owners.  Is  „«  salvage  ,"e  fo"  sT  !?"''  ''"'  ^'^'^">'  '^^ 
'^"efit?  ^''^  ""«^'  for  so  certain  and  so  signal  a 

It  is  said,  that  unless  salvage  is  exnr.«i      • 
?ress,  ,t  can  only  be  claimed  uol?^  ^"''"  ''^  ^l^*^  ^^^  of  Con- 
P"ed.     This  is  not  the  crse    ^^^    ^'T'  f"'"  ""^"^  ^  -' 
never  ,s  supposed  to  arise  rx  coZ^\\      '"^''^'^  "P°"  ^'^^^apture 
the  benefit  received,  and  Jfere 7h  " t  n     "  '""  "  ^  ^'^-'"^  f- 
subject,  the  amount  is  to  be  reeulatln       "°  *^''P^«''  ^^^tute  upon  the 
the  recaptor,  nor  by  his  inten  f^  to  ^  "        '."''  '^''^^  *^^  ^^^^<^  of 
posed  amount  which  the  own  r  wo„ld  I"  'kL""^'^'  ''"'  ''^  ^^e  sup- 
the  rescue  of  his  propertv     VV    T  ^  '^"  ^•"'ng  to  give  for 

'  Rob.  23^5.  the'rl'I^JJa"    o?'  ''''    .^"  ^^^   '-  ^^^'^^ 
--;.    And  in  the  same  cas   "^rSirw   i'  "''  *°  ''^  "'""""- 
^Mtly  questioned  in  the  act  of  court  fwh    ^      °"  ''^'*  ""  ^""^  ^" 
of  facts  g,ven  by  both  parties      whetheT  th    '°"'""  ''^  "P°^'^'°» 
host.ht,es  between  America  and  Fnn  el  .     '  "''  '"'''  '^  ^^^^^  ^^ 
for  American  goods  retaken  from  the  p^      ^  ''^'"  "  ''*''  °^  '"'^"^^ 
been  pursued  in  argument;  andTd  ed  ^h     ,.     "'  '"'  P°*"»  ''^  "ot 
the  determinations  of  this  court    which   h        "'"'"^''  '^  '*  '"'^-  a^'" 
decreed  salvage  in  similar  cases      U    s  „n  7"  '"   ^""°"^  '■"^»»"<^"- 
America  is  at  war  with  France   ornlt  7.    u  ""'  '"  ^'^^  ^f^^ber 
towards  America   has  been   s"h  1/1  .        '''  '"""^-  ''^  ^"-"ce 
owners  to  acknowledge  the  serviced /rl'^  V"   '"'"'^'^  •^'"--- 
tb-r  sh.ps  and  cargoes  out  of  the  h Id'oT  P       u''  '""  ""-'"^"'d 
of  arms."  '"*  ""nds  of  French  cruisers,  by  force 

fn  the  case  of  Bas  y    Tinn.,  »u 
-'vaRe  could  be  claim' J  u'^n^'jeT'T  ""  T  '"''''■'■  -"^''^er 
ground  of  benefit  rendered  •  TnV,i!     .   "  "'  "'  •''  "«="»"'•  on  the 
.n  that  case  does  not  Ste  :'h  o!" h"'  ""  "'""'■""  «^  ^'^  -urt 

A"»fu^t  II.  1801.     MarsLT   r    T     f"" 
-"":  This  is  a  writ  .^  eX   i'  "^  ^'  '^'r^'^'^  *''-  '>'""'on  of  the 
^'^or  to  a  decree  of  the  circuit  court  for  the 


■m  J  t 


138 


JUDGMENTS  OF  THE  SUPREME  COURT 


^  -?■;■ 


master  and  French  JorVL Ti' /I  J"'"'  "°''  """'"e  a  pri«- 

.o  be  Judged  acTord  "/rjuts  .,  :ar°'S;^H  't-.r  f^"^'"^' 
*e  was  ,ecaptu.«l  by  Canlaln  T=lw  .  '  ""'  "'  Seplonber, 

who  ordered'Ler  toa  (Jry" J  wLTT':'''"  °!  ""  ''''"«''""". 
reeaptnre  the  ^«X  h!!  ^"''.'"  adjudication.    At  the  Ume  of  the 

with'whkhshe tft  ciu,:*  fZ  .'hT'.'""  "«"  "■~""  ««"'■ 
«™o„„  h  app,ar.d,rtte  ^^.Z^t^TcLZtj'- 

r:iorth"r?rce°Lr;T^ '"^ """ '-^^^^^^ 

that  she  may  be  condemned  as  prize    or     f  res  or.^  ^  '  ""'''' 

entitled  to  her  as  the  f«r,^«,  V  "^fstored  to  any  person 

made  on  payiLi  vaie     The'T"'      "\  ""''  "^''^"*'°"  ^'^''"''^  '-■ 
»"•/"'»  -ai\age.     ihe  claim  and  answer  of  Hq„o  c    j 

Seeman  discloses  the  neutral  character  nf  T.  ,        !      ^''^^"' 

on  behalf  of  the  owners.  """'''•  ""'^  '^'»''"-''  ^^'^ 

The  questions  growing  out  of  the  facts,  and  to  be  decide  K    ., 
court,  are:    Is  CarrfaJn  TaiK«.  *u      t  •    ■»  .  aecided  by  tic 

. .  a.,  .o  wS^c:t\tr::irhrcrd  ""'■  "■■■' 

pirates,  or  from  the  enemv      In  orH^r    hi  "'"*^  ^'""^ 

-and.  two  circumstances  must    on^^rlThni-'^  "''^  ^"^  '''■ 
2  There  .us.  be  a  meritorious  se^n "c^e  L^^dtXTaX:::^"'- 


TALBOT  v.SEEMAN  (THE  AMELIA) 


1-  The  taking  must  be  lawful-  for  n^    i  ■ 
court  of  justice,  founded  on  an  ;«I"°  tT.""  "^  "^'"^^'-^  -  a 
therefore   made  by  a  neutral  poTe     no  '  T'    °"  ^  ^^'^^P'^re, 

because  the  act  of  retaking  is  Tho, ',  "  ^°'  ''^'^^^  «"  arise 

;-  of  the  nation  to  whicV  he  vSef  "k  "°^  l"^*'"'^  ^>-  ^he  situa 
m  relation  to  that  from  the  possess  fn  „TT^''''  '""^P*"^^  ^e'ong., 
^^el  was  taken.     The  degree  of  !  '^^"''  '"^'^  recaptured  ves 

precisely  the  sa.e  aslfTha/Crrnr^^K'  '''  ^^^^^  --"' 
nghts  accruing  to  the  recaptor  a"e  „ot  1    '^  ^  ^^"'^^^nt;  yet  the 

ToT  'r  ^"  ''' '"  'tself  unlawLl  ""^'  "^""^  "«  "^^t 

-ssao^^^^^r::^^^- IJe  ;;?:;;-  C^tain  Talbot,  it  becomes 
France  at  the  date  of  the  recapture  rJ  -  «  ^"""^  ^'"'"  ^"'l 
by  the  institution  of  the  Unfll%.  '  ''''°'*^  P***«"  of  war  beinJ^ 
of  that  body  can  alone  be  ^etredta  "^^^'  '"  ^°"^-'  »»'-'■ 
It  .s  not  denied,  nor.  in  the  cou  f  o!  th  °"'  ^"'"  '"  ^'"'^  '"^^-y- 
n'ed.  that  Congress  may  authoZ  ''^V'^"'""^'  ^^'  ^^  ^^  de- 
the  general  laws  of  war  apolv T  ^'"'"'  ^°^"''*^'=^'  *"  whicTcase 

-  which  ca«.  the  laws  o  'waVso^;:  ''"'1'°"=  ^'^  P««'^'  "ostili  fes 
^'tuation.  must  be  noticed.    To  de  enl  L'.V'"  ^ "'"^  'PP'^  '«  our 

-  regard  to  France,  the  acts  of  ^Tg" « teTo  S"-'"°"  °'  ^-"- 
.    ^''^  '^"t  act  on  this  subject  o^Ja        .u^  ^  "ispected. 

if  r  n  •  ^"  ^^' '"''-  ^ffiSanyTo  p^r^tL^tf '  ''^  ''^^'  ^^'  ^^^ 
of  the  United  States.-    This  act  .1  ^  commerce  and  coasts 

Ignited  States  to  capture  any  ar^ed    LTd?  r'  '""^'  ^""'  ^^  'h 
or  pretense  of  authoritv.  of  theTn.Ih        it"^  ""^"  '^^  '^^hority 
commuted  depredations  on  vessel!  h^"  °'  ^'*""'  ^^'^"^  ^''a"  have 
United  States,  or  which  shall^^und  h"^"^  '°  ''''  ^'^'""^  of  the 
purpose  of  committing  such  deprXl       '?"^  °"  '^'  "'«^'^-  -or  the 
capture  of  vessels  belonging  toTh^"''     ^'  ^^"^  ^"'^'^^^^  the  re 
^  On  the  25th  of  June.^Jfg'"  n  ac        ""^  °'  '''  """'^^^  S^«^«- 
ense  of  the  merchant  ve«els  "f  th     r ''?'  "'"  ^"''^°"-  the  de- 
•lepredations."     Thi-  act  I^weV  T"^  ^'''''  '''^•^'"•'t   French 

^y  citizens  of  the  VnllrsZ7]olT7  :""'•  °^-''  ^^^^ 
attack  which  may  he  made  on  them  K    n  themselves  against  any 

armed  vessel  sailing  und  r  Frll  ^'  "  ^"'"'"■''"rfcr  or  crew  of  any 
-t.  by  or  under  the  auttrityTf the'p  "'  u  :''''''•  ''  P^'-^ing  "o 
any  such  vessel.     This  aTt    L  ^mh  ^!''''\^^P-^^'c  -  and  to  capfu  e 

-'^'---'---ciir;?r\;::enE-;f- 


140 


JUDGMENTS  OF  THE  SUPREME  COURT 


section,  such  armed  vessel  is  to  be  brought  in  and  condemned  for 
the  use  of  the  owners  and  captors.  By  the  same  section,  recaptured 
vessels  belonging  to  the  citizens  of  the  United  States,  are  to  be  re- 
stored, they  paying  for  salvage  not  less  than  one-eighth  nor  more  than 
one-half  of  the  true  value  of  such  vessel  and  cargo. 

On  the  28th  of  June,  an  act  passed  "in  addition  to  the  act  more 
effectually  to  protect  the  commerce  and  coasts  of  the  United  States." 
This  authorizes  the  condemnation  of  vessels  brought  in  under  the  first 
act,  with  their  cargoes,  excepting  only  from  such  condemnation,  the 
goods  of  any  citizen  or  person  resident  within  the  United  States,  which 
shall  have  been  before  taken  by  the  crew  of  such  captured  vessel.  The 
second  section  provides  that  whenever  any  vessel  or  goods,  the  prop- 
erty of  any  citizen  of  the  United  States,  or  person  resident  therein, 
shall  be  recaptured,  the  same  shall  be  restored,  he  paying  for  salvage 
one-eighth  part  of  the  value,  free  from  all  deductions. 

On  the  9th  of  July,  another  law  was  enacted,  "further  to  protect 
the  commerce  of  the  United  States."  This  act  authorizes  the  public 
armed  vessels  of  the  United  States  to  lake  any  armed  French  vessel, 
found  on  the  high  seas.  It  also  directs  such  armed  vessel,  with  her 
apparel,  guns,  etc.,  and  the  goods  and  effects  found  on  board,  being 
French  property,  to  be  condemned  as  forfeited.  The  same  power 
of  capture  is  extended  to  private  armed  vessels.  The  sixth  section 
provides,  that  the  vessel  or  goods  of  any  citizen  of  the  United  States, 
or  person  residing  therein,  shall  be  restored,  on  paying  for  salvage  not 
less  than  one-eighth,  nor  more  than  one-half,  of  the  value  of  such 
recapture,  without  any  deduction. 

The  seventh  section  of  the  act  for  the  government  of  the  navy, 
passed  the  2d  of  March,  1799,  enacts,  "That  for  the  ships  or  goods 
belonging  to  the  citizens  of  the  United  States,  or  to  the  citizens  or 
subjects  of  any  nation  in  amity  with  the  United  States,  if  retaken 
within  twenty-four  hours,  the  owners  are  to  allow  one-eighth  part  of 
the  whole  value  for  salvage,"  and  if  they  have  remained  above  ninety- 
six  hours  in  possession  of  the  enemy,  one-half  is  to  be  altowed. 

On  the  3d  of  March,  1800,  Congress  passed  "an  act  providing  for 
salvage  in  cases  of  recapture."  This  law  regulates  the  salvage  to  he 
paid  "when  any  vessel*  or  goods,  which  shall  be  taken  as  prize  as 
aforesaid,  shall  appear  to  have  before  belonged  to  any  person  or  per- 
sons permanently  resident  within  the  territory,  and  under  the  pm- 
tpction.  of  any  foreign  prince,  government  or  state,  in  amitv  with  the 


TALBOT  V.  SEEMAN  (THE  AMELIA)  142 

United  States,  and  to  have  been  taken  by  an  enemy  of  the  United 
States,  or  by  authority,  or  pretense  of  authority,  from  any  prince 
government  or  state,  against  which  the  Uniced  States  have  authorized, 
or  shall  authorize,  defense  or  reprisals." 

These  are  the  laws  of  the  United  States  which  define  their  situation 
m  regard  to  France,  and  which  regulate  salvage  to  accrue  on  recap- 
tures made  m  consequence  of  that  situation. 

A  neutral  armed  vessel  which  has  been  captured,  and  which  is  com- 
manded and  manned  by  Frenchmen,  whether  found  cruising  on  the 
h>gh  seas,  or  sailing  directly  for  a  French  po.t,  does  not  come  within 
the  description  of  those  which  the  law  authorizes  an  American  ship 
of  war  to  capture,  unless  she  be  considered  quoad  hoc  as  a  French 
vessel. 

Very  little  doubt  can  be  entertained,  but  that  a  vessel  thus  circum- 
stanced encountering  an  American  unarmed  merchantman,  or  one 
which  should  be  armed,  but  of  inferior  force,  would  as  readily  cap- 
ture such  merchantman,  as  if  she  had  sailed  immediately  from  the 
ports  of  France.  One  direct  and  declared  object  of  the  war,  then 
which  was  the  protection  of  the  American  commerce,  would  as  cer- 
tainly require  the  capture  of  such  a  vessel,  as  of  others  more  deter- 
m.nately  specified.  But  the  rights  of  a  neutral  vessel,  which  the  Gov- 
ernment of  the  United  States  can  not  be  considered  as  having  disre- 
prded  here  intervene;  and  the  vessel  certainly  is  not,  correctly  speak- 
ing, a  French  vessel. 

If  the  Amelia  was  not.  on  the  15th  of  September,  1799,  a  French 
vessel,  within  the  description  of  the  act  of  Congress,  could  her  ca->- 
ture  be  lawful?  It  is,  I  believe,  a  universal  principle,  which  appli« 
to  those  engaged  in  a  partial,  as  well  as  those  engaged  in  a  general 
war.  that  where  there  is  p.obable  cause  to  believe  the  vessel  met  with 
at  sea.  IS  m  the  condition  of  one  liable  to  capture,  it  is  lawful  to  take 
her.  and  subject  her  to  the  examination  and  adjudication  of  the  courts. 
1  he  Ameha  was  an  armed  vessel,  commanded  and  manned  by  French- 
men. It  does  not  appear,  that  there  was  evidence  on  board  to  ascer- 
tain her  character.  It  is  not  then  to  be  questioned,  but  that  there  was 
probable  cause  to  brinjr  her  in  for  adjudicition.  The  recapture,  then 
wns  lawful. 

Rut  it  has  been  insisted,  that  this  recapture  u-as  onlv  lawful  in  con- 

cq.ience  of  the  doubtful  character  of  the  Amelia,  and  that  no  right 

Of  salvage  can  accrue  from  an  act  which  was  founded  in  mistake  and 


9- 


142 


JUDGMENTS  OF  THE  SUPREME  COURT 


which  is  only  justified  by  the  difficulty  of  avoiding  error,  arising  from 
the  doubtful  circumstances  of  the  case.  The  opinion  of  the  court  is, 
that  had  the  character  of  the  Amelia  been  completely  ascertained  by 
Captain  Talbot,  yet,  as  she  was  an  armed  vessel,  under  French  au- 
thority, and  in  a  conJition  to  annoy  the  American  commerce,  it  was 
his  duty  to  render  her  incapable  of  mischief.  To  have  taken  out  the 
arms,  or  the  crew,  was  as  little  authorized  by  the  construction  of  the 
act  of  Congress  contended  for  by  the  claimants,  as  to  have  taken  pos- 
session of  the  vessel  herself. 

It  has,  I  believe,  been  practised  in  the  course  of  the  present  war, 
and  if  not,  is  certainly  very  practicable,  to  man  a  prize  and  cruise 
with  her  for  a  considerable  time,  without  sending  her  in  for  conden 
nation.    The  property  of  such  vessel  would  not,  strictly  speaking,  be 
changed,  so  as  to  become  a  French  vessel,  and  yet  it  would  probably 
have  been  a  great  departure  from  the  real  intent  of  Congress,  to  have 
permitted  such  vessel  to  cruise  unmolested.     An  armed  ship,  under 
these  circumstances,  might  have  attacked  one  of  the  public  vessels  of 
the  United  States.    The  acts  which  have  been  recited  expressly  au- 
thorize the  capture  of  such  vessel,  so  commencing  hostilities,  by  a  pri- 
vate armed  ship,  but  not  by  one  belonging  to  the  public.    To  suppose, 
that  a  capture  would  in  one  case  be  lawful,  and  in  the  other  unlawful : 
or  to  suppose,  that  even  in  the  limited  state  of  hostilities  in  which  we 
were  placed  two  vessels  armed  and  manned  by  the  enemy,  and  equally 
cniisinfj  on  .\merican  commerce,  might  the  one  be  lawfully  capturcl, 
.vhile  the  other,  though  an  actual  assailant,  could  not;  or  if  captured, 
that  the  act  could  only  be  justified  from  the  probable  cause  of  capture 
furnished  by  appearances,  would  be  to  attribute  a  capriciousness  to  our 
legislation  on  the  subject  of  war,  which  can  only  be  proper  when  in- 
evitable. 

There  must,  then,  be  incidents  growing  out  of  those  acts  of  hostility 
specifically  authorized,  which  a  fair  construction  of  the  acts  will  au- 
thorize likewise.  This  was  obviously  the  sense  of  Congress.  If  by 
the  laws  of  Congress  on  this  subject,  that  body  .shall  appear  to  have 
legislated  upon  a  perfect  conviction  that  the  state  of  war  in  which  thi« 
country  was  placed,  was  such  as  to  authorize  recaptures,  generally, 
from  the  enemy;  if  one  part  of  the  system  shall  be  manifestly  founded 
on  this  construction  of  the  other  part,  it  would  have  considerable 
weight  in  rendering  certain,  what  might  before  have  been  doubtful. 
Upon  a  critical  investigation  of  the  acts  of  Congress,  it  will  appear. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  J43 

bmth'at  of  °'  T^'""  "  '"P''"''^  ^•^'="'  '"  ™  ''-SK^  '-tance. 
sLtl     T?      „T''  °''  ^°°^'  "^'""^"^  *°  ^  '^•tizen  of  the  United 
States     It  W.I1  also  appear,  that  the  quantum  of  salvage  is  regulated 
as  ,    the  nght  to  ,t  existed  previous  to  the  regulation^ 

Although  no  right  of  recapture  is  given,  in  terms,  for  the  vessels 
and  goods  belong,ng  to  persons  residing  within  the  United  StlteTno 
bemg  cfzens,  yet  an  act,  passed  so  early  as  the  28th  of  June    1798 

sha  r  b^'      ?  "T''  '"'  ^°^'^  °^  ^'^'^  ''"^"P*-".  -hen  lecaptured 
hall  be  restored  on  paying  salvage;  thereby  plainly  indicating    tha 

^iption.  not  exprestShorvr:::yier^:j -: - 

h?n  r        M  ?^''  ^•"''^  "'"'•"  C°"eress  proceeds  to  regulate 

then   t  would  seem,  that  other  recaptures  from  the  same  eneX  are 

^:citS1JL'Z'-^  '-'  ^'^-  --  ^  ^-rminL  by  the 

In  this  situation   remained  the   recaptured  vessels  of  anv  oth^r 

power,  also  at  war  with  France,  until  the'act  of  the  2d  of  MaTch  T^ 

wh.ch  relates  the  salvage  demandable  from  them.     Neither  by  that' 

Tew  out  o    thf  1       f 'r'*"''  T  '"  ""^''^"^  "'^''=»'  unavoidably 
Erwith  he  '  u"""'    ^"  ^"^^  '^^P*"^^  °^  ^  ^'■^^"'^h  vessel 

havmg  with  her  as  a  pnze  the  vessel  of  such  a  power,  the  prize  wa' 

nTrhat^^JsTf•  ?  ^'^ '''-'  ^^^  '•^^^  --p^--  -'"-^" 

and  that  it  was  a   foundation  on   which  the  right  to  salvage  rnnlH 

J'tlltJt^Ti  'Vr^^^'-  ''^-  ''--edlhat  the  a.;  r 
tha   salvage  should  be.    The  expression  of  this  act  is  by  .0  n.cans  ex 


144 


JUDGMENTS  OF  THE  SUPREME  COURT 


manner  with  the  laws  already  commented  on,  the  system  which  Con- 
gress considered  itself  as  having  established.  This  act  was  passed  at 
a  time  when  no  additional  hostility  against  France  could  have  been 
contemplated.  It  was  only  designed  to  keep  up  the  defensive  system 
which  had  before  been  formed,  and  which  it  was  deemed  necessary 
to  continue,  until  the  negotiation  then  pending  should  have  a  pacific 
termination.  Accordingly,  there  is  no  expression  in  the  act  extending 
the  power  of  recapture,  or  giving  it,  in  the  case  of  neutrals.  This 
power  is  supposed  to  exist,  as  an  incident  growing  out  of  the  state  of 
war,  and  the  right  to  salvage  produced  by  that  power  is  regulated  in 
the  act. 

In  case  of  a  recapture,  subsequently  to  the  act,  no  doubt  could  be 
entertained,  but  that  salvage,  according  to  its  terms,  would  be  de- 
mandable.  Yet  there  is  not  a  syllable  in  it  which  would  warrant  an 
idea,  that  the  right  of  recapture  was  extended  by  it,  or  did  not  exist 
before.  It  must  then  have  existed,  from  the  passage  of  the  laws, 
which  commenced  a  general  resistance  to  the  aggressions  we  had  so 
long  experienced  and  submitted  to. 

It  is  not  unworthy  of  notice,  that  the  first  regulation  of  the  right 
of  salvage  in  the  case  of  a  recapture,  not  expressly  enumerated  among 
the  specified  acts  of  hostility  warranted  by  the  law,  is  to  be  found  in 
one  of  those  acts  which  constitute  a  part  of  the  very  system  of  de- 
fense determined  on  by  Congress,  and  is  the  first  which  subjects  to 
condemnation  the  prizes  made  by  our  public  ships  of  war. 

It  has  not  escaped  the  consideration  of  the  court,  that  a  legislative 
act,  founded  on  a  mistaken  opinion  of  what  was  law,  does  not  change 
the  actual  state  of  the  law  as  to  preexisting  cases.  This  principle  is 
not  shaken  by  the  opinion  now  given.  The  court  goes  no  further  than 
to  use  the  provisions  in  one  of  several  acts  forming  a  general  system, 
as  explanatory  of  other  parts  of  the  same  system ;  and  this  appears  to 
be  in  obedience  to  the  best  established  rules  of  exposition,  and  to  be 
necessary  to  a  sound  construction  of  the  law. 

An  objection  was  made  to  the  claim  of  salvage,  by  one  of  the  coun- 
sel for  the  defendant  in  error,  unconnected  with  the  acts  of  Congress 
and  which  it  is  proper  here  to  notice.  He  states,  that  to  give  title  to 
■salvage,  the  means  ujcd  must  not  only  have  produced  the  benefit,  but 
must  have  been  used  with  that  sole  view.  For  this  he  cites  Beawes' 
Lex  Mcr.  1  ->.S.  The  principle  is  applied  by  Beawes  to  the  single  case 
of  a  vessel  ^averl  at  sea,  by  throwing  overboard  a  part  of  her  cargn. 


w 


TALBOT  V.  SE£MAN  (THE  AMELIA)  J45 

a"rXu"e^^s '""■'''  '^  ""^"-^--l»y  -rrect.  and  in  the  case  of 

IS  merely  a  conseouence  fmm      ""^'"'•/f' ^''S:^  ''  "ot  payable:  and  it 
neutrals  frorirrvmenrRr,'""'"^''-  ''''''''  '''^'"P*^  '•«^^P»"^«J 

practice  on Thi    sEt    ,et    ^         m  "'°"  "^'^"^^  '^^  '^"^  «"d  't^ 
tn.s  subject,  let  ,ts  legislation  be  such  as  to  subject  to 


:1 


146 


JUDGMENTS  OF  THE  SUPREME  COURT 


condemnation  all  neutrals  captured  by  its  cruisers,  and  who  will  say, 
that  no  benefit  is  conferred  by  a  recapture?  In  such  a  course  of 
things,  the  state  of  the  neutral  is  completely  changed.  So  far  from 
being  safe,  he  is  in  as  much  danger  of  condemnation,  as  if  captured 
by  his  own  declared  enemy.  A  series  of  decisions,  then,  and  of  rules 
founded  on  his  supposed  safety,  no  longer  apply:  only  those  rules  are 
applicable,  which  regulate  a  situation  of  actual  danger.  This  is  not. 
as  it  has  been  termed,  a  change  of  principle;  but  a  preservatbn  of 
principle,  by  a  practical  application  of  it,  according  to  the  original 
substantial  good  sense  of  the  rule. 

It  becomes,  then,  necessary  to  inquire,  whether  the  laws  of  France 
were  such  as  to  have  rendered  the  condemnation  of  the  Amelia  so 
extremely  probable,  as  to  create  a  case  of  such  real  danger,  that  he. 
recapture  by  Captain  Talbot  must  be  considered  as  a  meritorious  serv- 
ice entitling  him  to  salvage.  To  prove  this,  the  counsel  for  the  plain- 
tiff m  error  has  offered  several  decrees  of  the  French  Government, 
and  especially,  one  of  the  18th  of  January,  1798. 

Objections  have  been  made  to  the  reading  of  these  decrees,  as  being 
the  laws  of  a  foreign  nation,  and  therefore,  facts,  which,  like  other 
facts,  ought  to  have  been  proved,  and  to  have  formed  a  part  of  the 
case  stated  for  the  consideration  of  the  court.  That  the  laws  of  a 
foreign  nation,  designed  only  for  the  direction  of  its  own  affairs,  are 
not  to  be  noticed  by  the  courts  of  other  countries,  unless  proved  as 
facts,  and  that  this  court,  with  respect  to  facts,  is  limited  to  the  state- 
ment made  in  the  court  below,  can  not  be  questioned.  The  real  and 
only  question  is,  whether  the  public  laws  of  a  foreign  nation,  on  a 
subject  of  common  concern  to  all  nations,  promulgated  by  the  gov- 
erning powers  of  a  country,  can  be  noticed  as  law,  by  a  court  of  ad- 
miralty of  that  country,  or  must  be  still  further  proved  as  a  fact. 

The  negative  of  this  proposition  has  not  been  maintained  in  any 
of  the  authorities  which  have  been  adduced.  On  the  contrary,  .cycn'l 
have  been  quoted  (and  such  seems  to  have  been  the  general  practice) 
in  which  the  marine  ordinances  of  a  foreign  nation  are  read  as  la\y 
without  being  proved  as  facts.  It  has  been  said,  that  this  is  done  bv 
consent:  that  it  is  a  matter  of  general  convenience,  not  to  put  parties 
to  the  trouble  and  expense  of  proving  i>ermanent  and  well-known  la^vs 
which  ,t  IS  m  their  power  to  prove;  and  this  opinion  is  countenancerl 
by  the  case  cited  from  Douglas.  If  it  be  correct,  yet.  this  decree 
having  been  promulgated  in  the  United  States  as  the  law  of  France 


TALBOT  V.  SEEMAN  (THE  AMELIA) 


147 

c.nso,um„.  „ery  .,17,;™/!,  ''"""■"<'  '•X  <Wr  cargo,  in 
b.  d«Ia„d  good  pri„'  wh«.."  ,  e  ol"  „  lllr"^"""'-  """ 
cle.  .h.  s  ow.h  of  eS  or        '"  ,      ''  "  '"  '^"^  "■*  '"^ 

^m  orL  M,  J*"':-;'  iLTZ  t:^T '"""''' '"'  '" 

April.  .;99.tr"  i  hV'a  "  o?'  hi        !?  '""T'  '"  ^^^'^  '» 
Ito  conntry     Her.  i,  i.  ,    f  !V  t  '"°^°'"  '""  """(aclyr.  of 

»-«-.wr;yaV:;tt.ro7r-.':ft-ai:o7':a°^ 


if  ^1  ^  i 


'  $i 


I 


148 


Jl'tXiMENTS  OF  THt  >l TV    MF  CoLRT 


But  the  third  ami  founn  facts  in  the  statement  admit  th«  Amelia, 
with  her  cargo,  to  havi-  belonged  to  a  citu:«i  of  Hamburg,  which  city 
was  not  in  a  statr  ..f  hostility  with  the  Republic  of  France,  but  was 
to  be  considered  .i-  neutral  between  the  then  belligerent  powers.  It 
has  been  contended,  that  these  facts  not  only  do  not  show  the  recap- 
tured vessel  to  have  been  one  on  which  the  decree  could  operate,  but 
ix)sitively  show  that  the  decree  could  not  have  affected  her.  The 
whole  statement,  taken  ti  -ether,  amounts  to  nothing  more  than  that 
Hamburg  was  a  neutral  city :  and  it  is  precisely  against  neutrals,  that 
the  <lecree  is  in  terms  directed.  T..  prove,  therefore,  that  the  Amclui 
was  a  neutral  vessel,  is  to  prove  her  within  the  very  w6rds  of  the  de- 
cree, anil  conseiiuently.  to  establish  the  reality  of  her  danger. 

Among  the  very  elaborate  arguments  which  have  been  used  in  thi> 
case,  there  are  some  which  the  court  deem  it  pro^r  more  particu- 
larly to  notice  It  has  been  contended,  that  this  decree  might  have 
l)een  merely  in  tcrrorrm;  that  it  might  never  have  been  executed:  and 
that,  lieing  in  opiH>sition  to  the  law  of  nations,  the  court  ought  to 
presume  it  never  would  have  been  executed.  But  the  court  can  not 
presume  the  laws  of  any  country  to  have  been  enacted  in  terrorcm  ■ 
nor  tiiat  they  wil!  be  disregarded  by  its  judicial  authority.  Their 
obligation  on  their  own  courts  must  be  considered  as  complete-  an ' 
without  resorting  either  to  public  notorietv.  or  the  declarations  of  ou- 
own  laws  on  the  subject,  the  decisions  of  the  French  courts  must  be 
admitted  to  have  conformed  to  the  rules  prescribed  by  their  govern- 
ment. 

It  has  been  contended,  that  France  is  an  independent  nation,  entitle.^ 
to  the  benefits  of  the  law  of  nations ;  and  further,  that  if  she  ha= 
violated  them,  we  ought  not  to  violate  them  also,  but  ought  to  remon- 
strate  agamst  such  misconduct.  These  positions  have  never  bee- 
controverted :  but  they  lead  to  a  very  different  result  from  that  «!  v- 
they  have  been  relied  on  as  producing. 

The  respect  due  to  France  is  totally  unconnected  with  the  danger  - 
which  her  laws  had  placed  the  Amelia:  nor  is  France  in  any  manner  :^ 
be  affected  by  the  decree  this  court  mav  pronounce.  Her  interest  - 
the  vessel  was  terminated  by  the  recapture,  which  was  authorized  S 
the  state  of  hostility  then  subsisting  between  the  two  nations  Fro" 
that  time,  n  has  been  a  question  only  between  the  Amelia  and  the  re- 
ceptor, with  which  France  has  nothing  to  do. 

It  is  true,  that  a  violation  of  ,he  I.iw  of  nations  by  one  power  doe? 


TALBOT  V  SEEMAN  ithe  AMELIA,  ,^5 

-Vmenca    Ai/J^  '^  ''''"''•=  '*^'*^''  has  been  pursued 

.-\menca    did    remonstrate     m&>t    Mrn»  »i,. 

Miii-v,  I,,,  I.  •,     .        ^«"S"  irom  wnicn  she  has  been  saveH 

.la^H       X  ''"^  '''""^  '^*=  generar conduct  of  France  an^En 

sidcration  not  to  be  taken  un  in  ,h  'ormer.    That  is  a  con- 

ture  neutrals    «.hi-i,         >      V         ^  ^"'^'^  U)vernnient  to  cap- 

Talbo        t';h:t  e  of  h?tT7>:''    ""^^""   '"^'^^   ^^   ^^P'-" 

c^.dered  as  h:..c:t:;h<:;;^';i^r  ^1!^  ri^i^  T^  ^"t  *^ 
been  unaccept:j:tr  ^^^'i^^::^;:  ^^i'^'-  r ''-' 

onlv';^::^.  J:    ^     — -^^;-!^"-  of  ^a.  and  i.  i„  Lf. 
captured  deoend.   fn  Vh  u  -'"^^-^equent  fate  of  the  re- 

ouLtances  '  """"  '^  '^'^  ^^^•--^-  -^  -  o'her  cir- 

-^rZ:s'^;z:t'^^\zr'-  ;^-^--'  ^  ^  — • 

war  with  France    recZ'     1       ^T       '^  ^''"'-  ^"  ^  -=tate  of  declared 

circumstance    woud  the   f  u"  ""'"'^  '"  """"^^>'-  ^™-  -^at 

^°"Id  the  law.  m  that  state  of  things,  implv  if  Qearly 


1.        -f! 


150 


JUDGMENTS  OF  THE  SUPREME  COURT 


from  the  benefit  received,  and  the  nk  incurred.  If,  in  the  actual 
state  c;  things,  there  was  also  benefit  and  risk,  then  the  same  cir- 
cumstan    s  concur,  and  they  warrant  the  same  result. 

It  is  a  io  urged,  that  to  mainUin  this  right,  the  danger  ought  not 
to  be  merely  speculative,  but  must  be  imminent  and  the  loss  certain 
That  a  mere  speculative  danger  will  not  be  sufficient  to  entiUe  a  per- 
son to  salvage,  is  unquestionably  true.     But  that  the  danger  must  be 
such,  that  escape  from  it  by  other  means  was  inevitable.'  can  not  be 
admitted.     In  all  the  cases  stated  by  the  counsel  for  the  defendant  in 
error,  safety  by  other  means  was  possible,  though  not  probable     Th» 
flames  of  a  ship  on  fire  might  be  extinguished  by  the  crew,  or  by  a 
sudden  tempest     A  ship  on  the  rocks  might  possibly  be  gotten  off ,  by 
the  aid  of  wmd  and  tides,  without  assistance  from  others.    A  vessel 
captured  by  an  enemy  might  be  separated  from  her  captor,  and  if 
saitors  had  been  placed  on  board  the  prize,  a  thousand  accidents  might 
possibly  destroy  them ;  or  they  might  even  be  blown  by  a  storm  into  a 
port  of  the  country  to  which  the  prize  vessel  originally  belonged     It 
can  not,  therefore,  be  necessary  that  the  loss  should  be  inevitably  L^r- 
tain;  but  .t  is  necessary  that  the  danger  should  be  real  and  immine... 
It  .s  believed  to  have  been  so,  in  this  case.    T    >  captured  vessel  wa^ 
of  such  descnption  that  the  law  by  which  she  .  as  to  be  tried,  con- 
demned  her  as  good  prize  to  the  captor.    Her  danger,  then,  ua,  real 
and  immment.     The  service  rendered  her  was  an  essential  service 
and  the  court  is,  therefore,  of  opinion,  that  the  recaptor  is  entitled  to 
salvage. 

3.  The  next  object  of  inquiry  is.  what  salvage  ought  to  be  allowed - 
The  captors  claim  one-half  the  gross  value  of  the  ship  and  cargo  To 
support  this  claim  they  rely  on  the  "act  for  the  govemmentTf  the 
navy  of  the  United  Sutes."  passed  the  2d  of  March.  1799  This  act 
relates  the  salvage  payable  on  the  ships  and  goods  belonging  to  the 
citizens  of  the  United  States,  or  to  ,hc  citiz  ^  or  subjeTts  of  any 
ration  m  ami.y  with  the  United  States,  retaken  from  the  enemy.     I 

of  the  act.     That  the  owner  of  the  Amelia  is  a  citizen  of  a  state  in 
anuty  with  the  United  States,  retaken   from  the  en!;;,y      T  It  , 
description  would  have  been  more  limited,  had  the  intention  of  the    c 
be  n  to  re.tra.n  its  application  to  a  recaptured  vessel  belonging  ,o 

words  of  the  act  would  certainly  admit  of  this  constniction. 
'  [impottibte] 


I 


TALBOT  V.  SEEMAN  (THE  AMELIA)  ^j 

law'l'^onhe'unSS  T.  "^''l'"'  ^'  ^'''"'^  ""'^  ^"^  '-«'  that  the 
stn.L  1    »       .  u*'"  ''"^''*  "°*'  '^  *t  "^^  ^^°idable.  so  to  be  con- 

tt  !^        T  '■"''  '*''  ~"""°"  P""'^'P'^  -"d  "'^ages  of  nations^ 

n    J^  .  *'  "  '"''J"^*^  t°  ''!«  same  rate  of  salvaee  a  re 

cairtured  neutral,  and  a  recaptured  belligerent  vessel.    Y  ra'ording 
to  t|.Jaw  of  nat.ons.  a  neutral  is  generally  to  be  restored "-[htt 

weight  from  the  consideration  that  the  act  in  question  is  not  t«„ 
porary,  but  permanent.     It  is  not  merely  fitted  to  thrtJ 
state  of  things,  and  calculated  to  expire  with  them   h,.  '"•'    '"^ 

applying  to  present  and  future  tim«     mltTt'h  "h  "  '  "^  ^"°" 

enemvavi.«*i,— u    ^'s'ons  ot  the  act.    The  expression  used  is.  the 
enemy,  a  vessel  retaken  from  the  enemy.    The  enemv  of  whom?    tu 
court  think,  it  not  unreasonable  to  answer,  of  S'^rtres     Bv  2l 

:;:t:::^  z:'  h'r--^  ^'■"  -^^^  vioiaterr-pn'  .• 

o-e  j;;iSl^ -t--  -- -;^^^  -eve.  the  legislate 

saved   r„H     AT        ?        '^  '''"*^"  '''*'"   ^f''^''  ff'e  recaptured   was 

2tZ   a  4^"  CoTder  tS  """"^  "^  '"^  ^"-'   -^^'  '^  » 

also  what  rule  ha,  beeradonTH         T"'"^^''""^-  «"'<  considering 

»ix.h  appears  .oVT^.:^  it^'^  «^  ^^-"'^V-  one- 

It  .».  therefore,  the  opinion  of  the  court,  that  the  decree  of  the 


152 


JUDGMENTS  OF  THE  SUPREME  COURT 


circuit  court,  held  for  the  district  of  New  York,  was  correct,  in  re- 
versing the  decree  of  the  district  court,  but  not  correct  in  decreeing 
the  restoration  of  the  Amelia,  without  paying  salvage.  This  court, 
therefore,  is  of  opinion,  that  the  decree,  so  far  as  the  restoration  of 
the  Amelia,  without  salvage,  is  ordered,  ought  to  be  reversed,  and 
that  the  Amelia  and  her  cargo  ought  to  be  restored  to  the  claimant,  on 
paying  for  salvage  one-sixth  part  of  the  net  value,  after  deducting 
therefrom  the  charges  which  have  been  incurred. 


THE  UNITED  STATES  v.  The  Schooner  PEGGY' 

Defittitive   decree. — Judicial  notice. — High  seas 

A  final  condemnation  in  an  inferior  court  of  admiralty,  where  a  right  of  appeal 
exists,  and  has  been  claimed,  is  not  a  definitive  condemnation,  within  the 
meaning  of  the  4th  article  of  the  convention  with  France,  signed  September 
X.  1800.' 

The  court  is  as  much  bound,  as  the  executive,  to  take  notice  of  a  treaty,  and 
will  reverse  the  original  decree  of  condemnation  (although  it  was  correct 
when  made),  and  decree  restoration  of  the  property,  under  the  treaty  made 
since  the  original  condemnation. 

Quaere,  as  to  the  extent  of  the  term  'high  seas'  ? 

Error  to  the  Circuit  Court  for  the  District  of  Connecticut,  on  a 
question  of  prize.  The  facts  found  and  stated  by  Judge  Law,  the 
district  judge,  were  as  follows : 

That  the  ship  Trumbull,  duly  commissioned  by  the  President  of 
the  United  States,  with  instructions  to  take  any  armed  French 
vessel  or  vessels,  sailing  under  authority,  or  pretense  of  authority, 
from  the  French  Republic,  which  shall  be  found  within  the  juris- 
dictional limits  of  the  United  States,  or  elsewhere  on  the  high 
seas,  etc.,  as  set  forth  in  said  instructions ;  and  .said  ship  did.  on 
the  24th  day  of  April  last  rApril.  1800),  capture  the  schooner 
ffg.?y,  aftei;  running  her  ashore,  a  few  miles  to  the  westward  of 
Port  ail  Prince,  within  the  dominions  and  territory  of  General 
Toussaint,  and  has  brought  her  into  port,  as  set  forth  in  the  libel ; 
and  it  further  appears,  that  all  the  facts  contained  in  the  claim' 
are    true;'    whereupon,    this    court    are    of    opinion    that    as    it 


'  1  Cranch.  10.i ;  December  term,  1801. 
» Infra,  p.  4«7, 

«The  material  facts  stated  in  the  claim  are  that  the  schooner  was  the 
property  of  nUtj-m  of  tlir  Fre n  h  Republic ;  that  «he  was  permitted  bv  Toit»>aint 
to  receive  oti  board  the  targo.  which  was  on  board  at  the  time  of  capture;  that 


UNITED  STATES  v.  SCHOONER  PEGGY  153 

a^TSifuVdt  fh^ilTs^V^/f '^>^  "Pon  a  trading  voyage, 
the  French  Governmem  under  .^^"''**'"''  ^i.^^  dispatches  for 
with  directions  toTouch  ZZeoZlT  ^"'""r"*^  ^^  Toussaint. 
arms  she  had  on  board  mLth^        for  supphes,  and  that  the 

seas,  so  as  to  ^^  InSded  tJ^     w '  'u''  ^^'  "°*  °"  ^he  high 
the  commanders  ofAmeri  an  shS;rf  '^'  '"^L^"<='j«"^  ^venlo 

did.  on  or  about  the  2W  of  am',  "*  '*^*  ^°''^''  '"  »'^«^  s^i^  libel. 
/'«'CCV    after  nn„;n     u        ^^"^  '^'*'  '^=»P^"^«^  t^e  said  i^chooner 

convoy  of  a  tcndir/furnthH  b/Vr, ',i?r'?haf'\?lr  •'7"''  """" 

rnn  .-ishorc.  a  few  mile,  to  the  we,  ward   .f  PnT.  t     p  2'  ■^P"''  "''""  *»' 

aground.-  at  which  titne.  and  in  wLh^f  '  •"'  u"".^'""  ''"^  f""'  "'"'  "9*/ 
rn.«frW;  attackH  and  tt^A  l^e,^^™^  ,f  h"'"""^  "''  ,»«»'«  '"^  crew  of  the 
then  wa,.  and  still  i,.  oTterm,  of  Im  fv  .'  """^  •""  '"'':  'f  """»»  T.mssaint 
I'nifH  Stttw.  duly  en  e^d  inTa  I  »,  k.'/riT""''  "^l  ^^'•■"'f'hip  w.th  the 
on  a  lawful  voyage,  for  the  sVje  i^r,!^  ,  If^?  *i"'>'  J*'*'  ""■  'chooner  wa, 
■"  a  condition  tTtnnoy  J^U::^  C'l^Iid;:/^;,^;^  of 't^Tnl^n;!;,  ^ 


T*)fi.i:Lirai]» 


154 


JUDGMENTS  OF  THE  SUPREME  COURT 


afterwards  bring  her  into  port,  as  set  forth  in  the  hbel.  That  at 
the  time  of  the  capture  of  the  said  schooner,  there  were  ten  per- 
sons aboard  her.  That  she  was  then  armed  with  four  carriage- 
guns,  being  four-pounders,  with  four  swivel-guns,  six  muskets, 
four  pistols,  four  cutlasses,  two  axes,  some  boarding-hatchets, 
tomahawks  and  handcuffs.  That  she  was  a  trading  French  vessel 
of  about  a  hundred  tons,  then  laden  with  coffee,  sugar  and  other 
merchandise.  That  she  had  come  from  Bordeaux  to  Port  au 
Prince,  where  the  claimant  had  taken  in  said  cargo,  and  from 
whence  he  sailed,  on  or  about  the  said  23d  day  of  April,  with 
said  schooner  and  cargo,  having  dispatches  from  General  Tous- 
saint  for  the  French  Government.  That  the  said  Buisson  sailed 
from  Port  au  Prince  as  aforesaid,  with  the  permission  and  direc- 
tion of  General  Toussaint,  to  proceed  to  Bordeaux;  that  said 
schooner  so  sailed  from  Port  au  Prince,  under  convoy  of  an  armed 
vessel,  by  order  of  said  Toussaint,  without  a  passport  from  Mr. 
Stevens,  consul-general  of  the  United  States  at  St.  Domingo,  but 
that  Buisson  had  been  promised  by  Toussaint's  brother,  that  one 
should  be  obtained  and  sent  him,  which,  however,  was  not  done ; 
that  said  schooner  had  sailed  from  Bordeaux  for  Port  au  Prince, 
with  fifteen  men,  besides  eight  passengers  (according  to  the  roll 
of  equipage),  armed  with  some  guns,  swivels  and  muskets:  that 
said  Captain  Buisson  was  without  any  commission  as  for  a  vessel 
of  war,  and  alleges  that  he  was  armed  only  for  self-defense.  That 
at  the  time  of  said  capture,  the  guns  of  said  schooner  were  loaded 
with  canister-shot,  one  of  which  being  fired,  the  shot  fell  near 
the  bow  of  the  Trumbull;  but  the  said  Buisson  declares  that  said 
gun  was  fired  only  as  a  signal  to  his  convoy.  That  the  said  Cap- 
tain Buisson  appeared  to  be  in  a  dispositioi.,  and  was  prepared 
with  force,  to  resist  th'  boats  which  were  sent  from  the  Trumbull 
to  board  him,  a  little  previous  to  the  capture,  in  case  of  their 
attempting  it;  and  that  the  said  schooner  and  cargo  are  French 
property. 

l^pon  these  facts,  the  court  is  of  opinion  as  follows,  viz. :  How- 
ever compassion  may  be  moved  in  favor  of  the  claimant  by  snnic 
circumstances :  such  as  that  he  was  charged  with  dispatches  from 
General  Toussaint.  between  whom  and  the  United  States  there 
were  some  friendly  arrangements  respecting  commerce;  that  he 
was  not  in  a  capacity  of  greatly  annoying  trade,  from  the  fev  nes< 
of  his  men ;  and  his  allepation  that  he  was  armed  only  in  defense ; 
yet  as  the  court  is  bound  by  law.  which  makes  no  such  di<tinr- 
tions:  as  armed  French  vessels  are  not  protected  hy  any  tre.itv  or 
convention ;  particularly,  not  h\  the  regulations  between  Geiier.nl 
Toussaint  and  the  American  consul ;  and  as  the  said  schnniuT 
P^e.Cy  was  in  a  condition  capable  of  annoying,  and  even  of  c^p- 
turing  single  unarmed  trading  vessels,  unattended  with  convov: 
the  court  can  not  avoid  being  of  opinion,  that  she  falls  within  the 


UNITED  STATES  v.  SCHOONER  PEGGY  155 

laws  of  defense  whh  re.rirf t.  p  '  "P°"  °"'  P''"^"'  P'>"  of 
of  the  coast  of  France  r^^'^s-""^  'l'""*^!!  ^°  ''  ^"^  P-« 
the  court  is    therefore    of  «^  fP  "^f  ^'■''"'^''  ^^'^^  vessels; 

and  cargo  aVelYwfulpnze''"""  ''''  ^^'  ^^''^  ^^''°°"-  ^'^ 

thit  Ih^'t'erofT' dlSct' coTrt'  ^"'  "'^"'^l"^  •'^  ^'^■■^  --t. 
asregardstheiracqiittal  i  andthe/Zr^r^'V"^  '^  '"'"^'  ^°  ^" 
that  the  said  schooner   with 'hJlo  ^^  "  ^"^^>'  '•"ersed  ;  and 

and  the  good    aTcLt-hLh  ''*'"'' i  ^".'  '"^  «PP"rtenances. 

vtsstr  dlM  the  rr.S„/?   *  '  '""  '°  ""  "''I  """"l 

pon  exMpttd),  shall  bj  mmuslly  rtslored."    "This  articlt  .hill  lik, 

r..n    .        ?^°^  September.  1800.  this  convention  was  siened  bv  the 

State     wththl.H        ""  "'-'''^  ''y  '^"   f^^esident  of  the  Tnitcd 
tatcs.  u,th  the  advice  and  consent  of  the  Senate,  excepting  the  2d 


156 


JUDGMENTS  OF  THE  SUPREME  COURT 


r    1 


article,  and  with  a  limitation  of  the  duration  of  the  convention  to  the 
term  of  eight  years.  On  the  31st  of  July,  1801,  the  ratifications  were 
exchanged  at  Paris,  with  a  proviso  that  the  expunging  of  the  2d  article 
should  be  considered  as  a  renunciation  of  the  respective  pretensions 
which  were  the  object  of  that  article. 

This  proviso  being  considered  by  the  President  as  requiring  a  re- 
newal of  the  assent  of  the  Senate,  he  sent  it  to  them  for  their  advice. 
They  returned  it,  with  a  resolve  that  they  considered  the  convention  as 
fully  ratified.  Whereupon,  on  the  21st  of  December,  1801,  it  was  pro- 
mulged  by  a  proclamation  of  the  President. 

The  controversy  turned  principally  upon  two  points:  1st.  Whether 
the  capture  could  be  considered  as  made  on  the  high  seas,  according 
to  the  import  of  that  term,  as  used  in  the  Act  of  Congress  of  July  9th, 
1798  (1  U.  S.  Stat.  578).  2d.  Whether,  by  the  sentence  of  condem- 
nation, by  the  circuit  court,  on  the  23d  of  September,  1800,  the 
schooner  Peggy  could  be  considered  as  definitively  condemned,  within 
the  meaning  of  the  4th  article  of  the  convention  with  France,  signed 
at  Paris,  on  the  30th  of  September,  1800.  The  writ  of  error  was  dated 
on  the  2d  of  October.  1800. 

Griswold  and  Bayard,  for  the  captors. 

Mason,  for  the  claimant.' 

The  Chief  Justice  delivered  the  opinion  of  the  court. — In  this  case, 
the  court  is  of  opinion  that  the  schooner  Peggy  is  within  the  provi- 
sions of  the  treaty  entered  into  with  France,  and  ought  to  be  restored. 
This  vessel  is  not  considered  as  being  definitively  condemned.  The 
argument  at  the  bar  which  contends  that  because  the  sentence  of  the 
circuit  court  is  denominated  a  final  sentence,  therefore,  its  condem- 
nation is  definitive,  in  the  sense  in  which  that  term  is  used  in  the 
treaty,  is  not  deemed  a  correct  argument.  A  decree  or  sentence  may 
be  interlocutory  or  final,  in  the  court  which  pronounces  it.  and  re- 
ceives its  appellation  from  its  detennining  the  power  of  that  particular 
court  over  the  subject  to  which  it  applies,  or  being  only  an  intermedi- 
ate order,  subject  to  the  future  control  of  the  same  court.  The  last 
decree  of  an  inferior  court  is  final,  in  relation  to  the  power  of  that 
court,  but  not  in  relation  to  the  property  itself,  unless  it  be  .-icquiesced 
under.    The  terms  used  in  the  treaty  seem  to  apply  to  the  actual  oon- 

'  I  regret  that  not  having  the  notes  of  this  case.  I  am  unable  to  report  tlie 
very  ingenious  arguments  of  the  learned  couns.l. 


UNITED  STATES  v.  SCHOONER  PEGGY  157 

.or.  .M.  J,  „„„„  ^t;sr  „^,L"TJ'  „"p:rr w;^,: 
<o, .  j„.,.„uo„  :,t;',no:  rrr:,.  ^o^imi*? 

tion  ol  such  a,  art  M  , .:,  ,ieSni,ivel,  co„d™„,d.    Every  "ond™„a 
B.n  ,s  final  a,  »  ,,,.  court  which  pronounces  i,.  and  ^ooZZl^' 

It  has  be^n  urged,  that  the  court  can  take  no  notice  of  the  s  ipulation 
for  the  restoration  of  property  not  yet  definitely  condemned  That  he 
judges  can  only  inquiie  whether  the  «^nf,„-./  conaemned,  that  the 
delivered,  and  that  If  the  iud^e^t  tv  It^^"  c^rnTi  tZ 

othTu;i?^is::T^,e?^^""' '' ''  '-''^'^  Th"e  ci^,r: 

land      O?  rnn  ^  ''"'''^  '°  ^  ^^^  ^"P'*'"^  •«*  of  the 

bnd.     Of  consequence,   .ts  obligation  on  the  courts  of  the  United 

;'    "  ^'l!!*    "  '^'"•"^'^-    ''  '^  "«-"'y  »"'<^.  tf'-t  the  execmion  o    a 

sr;"tended?  T"'  ''  '^  '^  '""'''''''  ^™"'-  ^^  inThe  genel, 

yer  tne  decision  of  tins  court  may  be.  relative  to  the  riehts  of  oartir, 

such  affects  the    't  T  "  *'"*>'  ''  '^'  '^^^  °^  ^"^^  '^"''-  ^"^  a. 
Zri,  K    ?    u       "?'"'  °^  P*"*'"  "^'■^'*"P  '■"  ^0"rt.  that  treat^    as 

wh!^        °f  Congress;  and  although  restoration  may  be  an  executive 

whh  oTheTcirr  %"'^'"'^^  ^*^^-  ■■"'^''^"''-^  ^^-"^  ""-""  te^^ 

Th 'chtd  r^ed?      r^'  -T  r  '°"'''""  ^  ^•"^^'-  ^'^^  -^^°"'-n  of 

that  law  anTof  c  '  '         °'  *^'  ''"^'  """''^  ^^  ^  ^'"^^  '"^"^'-n  of 
inat  law,  and  of  consequence,  improper. 

only  to  7.n^'  ^"Tu  *""•  '*'"*  *^'  P'-''^'*""  "f  =>"  ^PP^II-te  cot.rt  is 

"no      But'^f  "  b    "  '  ^"'^'"*'  ^•''"  -"-^"^d.  .va.  erroneous 

not.    But  ,f.  subsequent  to  the  judgment,  and  before  the  decision 


nii< 


158 


JUDGMENTS  OF  THE  SUPREME  COURT 


of  the  appellate  court,  a  law  intervenes  and  positively  changes  the  rule 
which  governs,  the  law  must  be  obeyed,  or  its  obligation  denied.  If  the 
law  be  constitutional,  and  of  that  no  doubt,  in  the  present  case,  has 
been  expressed,  I  know  of  no  court  which  can  contest  its  obligation.  It 
is  true  that  in  mere  private  cases  between  individuals,  a  court  will  and 
ought  to  struggle  hard  against  a  construction  which  will,  by  a  retro- 
spective operation,  affect  the  rights  of  parties,  but  in  great  national 
concerns,  where  individual  rights,  acquired  by  war,  are  sacrificed  for 
national  purposes,  the  contract  making  the  sacrifice  ought  always  to 
receive  a  construction  conforming  to  its  manifest  import ;  and  if  the 
nation  has  given  up  the  vested  rights  of  its  citizens,  it  is  not  for  the 
court,  but  for  the  government,  to  consider  whether  it  be  a  case  proper 
for  compensation.  In  such  a  case,  the  court  must  decide  according  to 
existing  laws,  and  if  it  be  necessary  to  set  aside  a  judgment,  rightful 
when  rendered,  but  which  can  not  be  affirmed,  but  in  violation  of  law. 
the  judgment  must  be  set  aside. 


ALEXANDER  MURRAY.  Esq.,  v.  Schooner  CHARMING 

BETSY^ 

Marine  trespass.— Probable  cause— Damages.— Expatriation.— Armed 

vessel 

An  American  vessel,  sold  in  a  Danish  island,  to  a  person  who  was  bom  in  thf 
United  States,  but  who  had  bona  fide  become  a  burgher  of  that  island,  and 
sailing  from  tlience  to  a  French  island,  in  June,  1800,  with  a  new  cargo 
purchased  by  her  new  owner,  and  under  the  Danish  flag,  was  not  li.ible 
to  seizure,  under  the  non-intercourse  law  of  February  27,  1800.» 

If  there  was  no  reasonable  ground  of  suspicion  that  she  was  a  vessel  trading 
contrary  to  that  law,  the  commander  of  a  United  States  ship  of  war,  who 
seiies  and  sends  her  in,  is  liable  for  damages. 

The  report  of  assessors  appointed  by  the  court  of  admiralty  to  assess  the 
damages,  ought  to  state  the  principles  on  which  it  is  founded,  and  not  a 
gross  turn,  without  explanation. 

An  American  citiien.  residing  in  a  foreipi  country,  may  acquire  the  commercial 
privileges  atUched  to  his  domicil:  and  by  making  himself  the  subject  -f  a 
foreign  power,  he  places  himself  out  of  the  protection  of  the  United  States 
while  within  the  territory  of  the  sovereign  to  whom  he  has  sworn  alle- 
giance. 

'  2  (ranch,  M;  lebruary  term,  1804. 
•  Sufra.  p.  84. 


.M- 


MURRAY  V,  SCHOONER  CHARMING  BETSY  159 

taw?  '  *"*"  '"  '""^  •">""«•  w  may  be  prescribed  by 

What  d^ee  of  arming  constitutes  an  armed  vessel? 

Jhc  facu  of  this  case  are  thus  stated  by  the  D.strict  Judge  in  his 

the?tV'^ia':h?"/:^^i°,jr,f  f„,r ''  ''^  ^"^""^^ "-  ^«  ^- 

States  and  France,  InTSd^tnTJ-     T""  ^^^^  *h<=  United 
1800.  2  U  S  Stat  7^    InHfr*"^*^'"  *''*^'"'=°^    (27th  February 

in9  b4-,  VaJe^fl^g^airo'e^'aLV'^thf  oT"  ^^^P^- 
owned,  hired  or  emnlnvp^  k  "^  passing  of  that  act, 

States  or  by  Jtize^s^thereof^e^iH^^^^  ^'^^u'"'  ^•"'""  ^"e  United 
loupe/and  was  tatln  on  Se  S  sea,  '*?r',  '^""^  ^°  G^^'^^' 
by  the  libellant,  then  commander  of  Jk""  '^V^''  °^  J""^'  ^SOO- 
C<.«/W/a/w«.  i,^  pursuance  ot"1n,.r^L'  P"^'"  ^""'^^  ^^^'P  '^e 
by  the  President  o^the  United  SI  est^re^^:*^"  '°  '^'  "'^"^"»- 
pect  her  to  be  engaeed  in  atrnffi  '  ^  ^'"^  '■*^*^"  ^o  s"s- 
said  act.  etc.  Thf  ffaim  and  n!i  °'  "'"merce  contrary  to  the 
are  refe;red  to  for  ^ Tthe?  statS  ofth"'""  ^"i?  ^'^i^'"^!-^ 
case,  on  all  which  I  ground  my  d™  0„  '  Proceedings  in  this 
the  exhibits  and  testimony  inThis  cause  aS  A  k^"''""=";'°"  *° 
sel,  I  am  of  opinion  that  the  folwL'  %"'^.^^*<^'"  *^earing  of  coun- 
cdged  in  the  p^oceedi^lS!.  "^^  ^SSiS^t:;:,  ''''"  -»--'- 

ca.S"7-^"?L'StAnurthra.i^H''';  '-'-^r^--  "- 

Baltimore,  in  the  distrirt  of  M arviT^  a '^'^  /"*"''  "''«*  ^^^ 
registered  accordinetolw  hllnS  '»*"  American  bottom,  dulv 
in  the  United  SsJnH'  ^'""^"g- ^o  citizens  of.  and  resident 
papers :  that  she  w£  laden  v^^  /  '  ^'^"T"*^?^  ^''^  American 

g;i^^:-h^h^afyt~ 

be  was  to  accoJpShTe  sll^    T^AtT  "",  ""fl^"  "'^"^ 

consisting  chiefly  of  flour   was  effect  Jt-'^B^^^^^^^^^ 

the  vessel  rnuM  r,»»  tu      '  "•"  "^'"^ctea  at  >t.  Karthoiomew.  vet 

ma. ter  p  oc°Se^    >cco"di?:  ^:^-"'«?—'v,  disposed  of.  and  ihe 

whiT*  ,  l^     £j     'ccordms:  to  his  mstnictinn*.  to  St    Thorms 

Hnr  Aeha'f'nttS%m"  .^-^--nli^bed   by  Captain  /amis  pl,  J 

r^ena.f  nf  the  Amencnn  owner.,  for  a  valuable  considera- 


160 


JUDGMENTS  OF  THE  SUPREME  COURT 


■# 


tion,  to  a  certain  Jared  Shattuck,  a  resident  merchant  in  the  island 
of  St.  Thomas. 

That  although  it  is  ^ranted  that  Jared  Shattuck  was  born  in 
Connecticut,  before  the  American  revolution,  yet  he  had  removed, 
long  before  any  differences  with  France  in  his  early  youth,  to  the 
island  of  St.  Thomas,  where  he  served  his  apprenticeship,  inter- 
married, opened  a  house  of  trade,  owned  sundry  vessels,  and,  as 
it  is  said,  lands ;  which  none  but  Danish  subjects  were  competent 
to  hold  and  possess.  About  the  year  1796,  he  became  a  Danish 
burgher,  Invested  with  the  privileges  of  a  Danish  subject,  and 
owing  al.egiance  to  his  Danish  majesty.  The  evidence  on  this 
head  is  sufficient  to  satisfy  me  of  these  facts;  though  some  of 
them  might  be  more  fully  proved.  It  does  noi  appear,  that  Jared 
Shattuck  ever  returned  to  the  United  States  to  resume  citizenship, 
but  constantly  resided,  and  had  his  domicil,  both  before  and  at  the 
time  of  the  purchase  of  the  schooner  Jane,  at  St.  Thomas.  That 
although  the  schooner  was  armed  and  furnished  witl  immunition, 
on  her  sailing  from  Baltimore,  and  the  cannon,  arms  and  stores 
were  sold  to  Jared  Shattuck  by  a  contract  separate  from  that  of 
the  vessel,  she  was  chiefly  dismantled  of  these  articles  at  St. 
Thomas,  a  small  part  of  the  ammunition,  and  a  trifling  part  of 
the  small  arms  excepted.  That  the  name  of  the  said  schooner  was 
at  St.  Thomas  changed  to  that  of  The  Charming  Betsy,  and  she 
was  documented  with  Danish  papers,  as  the  property  of  Jared 
Shattuck.  That  so  being  the  bona  fide  property  of  jared  Shattuck, 
she  took  in  a  cargo  belonging  to  him,  and  no  other,  as  appears  by 
the  papers  found  on  board,  and  delivered  to  this  court. 

That  she  sailed,  with  the  said  cargo,  from  St.  Thomas,  on  or 
about  the  2.'ith  day  of  June.  1800,  commanded  by  a  certain  Thomas 
Wright,  a  Danish  burgher,  and  navigated  according  to  the  laws 
of  Denmark,  for  aught  that  appears  to  the  contrary,  bound  to  the 
island  of  Guadeloupe. 

That  on  or  about  the  first  of  July  last.  1800.  she  was  captured, 
on  her  passage  to  Guadeloupe,  by  a  French  privateer,  and  a  prize- 
master  and  seven  or  eight  hands  put  on  board :  the  Danish  crew 
(except  Captain  Wright,  an  old  man  and  two  boys)  being  taken 
oflF  by  the  French  privateer.  That  on  the  3d  of  the  same  Tuly. 
she  was  boarded  and  tak^n  possession  of  by  some  of  the  officers 
and  crew  of  the  Constellation,  under  the  orders  of  Captain  Mur- 
rav,  and  sent  into  the  port  of  St.  Pierre,  in  ^fartinique,  where  she 
arrived  on  the  5th  of  the  same  month  of  July.  I  dn  not  state  the 
contents  of  a  paper  called  a  procts  verbal,  which,  however,  will 
appear  among  the  exhibits,  because,  in  mv  opinion,  it  contains 
statements,  either  contrar>'  to  the  real  facts,  or  illusory,  and  cal 
culated  to  serve  the  purposes  of  the  French  captors.  Nor  do  I 
detail  the  number  nf  cutlasses,  a  musket  .ind  a  small  quantity  of 
ammunition    found  on  board,  when  the  schooner  was  boarded  bv 


MURRAY  V.  SCHOONER  CHARMING  BETSY  igl 

Captain  Murray's  orders.    The  Danish  papers  were  on  board  and 

SUn'  f"'<'ii''"'''<  fanned  by  the  French  cIptSrrno  oS 

fit  o*??he  b  JteV^f  ?'"°"'  °^PP'-^'"  Murray  from'the  Pres- 
ident ot  the  United  States  comprehend  the  case  of  a  vessel  found 

!?must'^T'°"  ^^kT.'^"'^*'  "'^'°"-  l'"*  ^<="  •*  should  Sen,  that 
It  must  be  a  vessel  belonging  to  citizens  of  the  United  States     It 

iZuTX''^"  '*'^'  ^^P'^'"  ^*""^y  had  any  knowledge  ojared 
Shattuck  bemg  a  native  of  Connecticut,  or  of  any  of  the  Uniled 
States,  until  he  was  informed  by  Captain  Wrightf  at  MartSue 
t;nnV.nT'""^'y  i°  ^°  '"'"  ^">'  'li^quisition  about  the  instX: 

Sctorv  to'S.'"'' M  °^  P"^"'^  u^™^^  ^'^'P^'  whether  they  were 
h  fi^i  ^*P^^'"  Murray  m  the  case  in  question;  and  if  so 
wheher  they  were,  or  not,  strictly  conformable  to  law  does  nS 
tAlT^^-^"  "''  *'''l*''  °"  i"vestigation,  turns  out  toTiUe- 
gal,  either  as  it  respects  the  municipal  laws  of  our  country  or  the 
laws  of  nations.  Captain  Murray's^espectable  character  Uh  as 
an  officer  and  a  citizen  forbids  any  ideVof  his  intent  on  to  do  a 
wanton  act  of  violence  towards  either  a  citizen  o?  the  United 
States,  or  a  subject  of  another  nation.    He,  no  doubt  thomrhth 

aSutation"  He'h^  rf  '"  ^"^^^'""  ^°  '"^^^^^  ^ta^ef  J 
Tarerf  Shl?H;.t^       '"^  ?> so  reasons  prevailing  with  him,  to  sell 
if  M  ^!"'.'^*='' «  '^^'■go  in  Martinique.    His  sending  the  schooner 
S  JJ^'IT'^""/"'  T''-'"''>'  P™P*^'  ^"'1  serviceable^to  the  owner 

Ste  her  bC  \CfT  """'^''.^^  '^'  ^^^^'  °"  board  to  nav-' 
^  „r?"*  ^"^^  further  proceeding  turns  out,  in  mv  ooinion 

Z^I^'J^Xrc^f^J^''  ""^^  "'^^^  ^PP^"  ^°  CapLiTMur-' 
ray  to  justify  his  conduct,  or  excite  suspicion  at  the  time  he  ran 
the  risk  of,  and  is  amenable  for.  consequences 

case  T%m  n*Tn-'*"*H^".°l*'''  l"""^'  ^"^  circumstances  of  this 
case  I  am  of  opinion  that  the  schooner  Jane,  being  the  same  in 
the  hbel  mentioned,  did  not  sail  from  the  United  States  whh  an 
VTatMe  H•?'^'i^''*■  ^°;:*  breach  whereof  the  libel  7s  filed 
r,,lA  r  "°*  ^^P"^   '^'"^"  ^^^  ^''«1  from  St.  Thomas  for 

suSitTa'red^lhS"."  V^'  ^"'''^  ^'''''-  ''"^  ^"  «  '^^"'"'^ 
sS«  nnH  ^^^^^^^  e'thc'-  never  was  a  citizen  of  the  United 
States,  under  our  present  national  arrangement,  or.  if  he  should 
hL,i[f  '/r'  ^'"  so  considered,  he  had  lawfully  expatriated 
S  fnw  "^  ^"'^'"-  \'^"*'J'"^*  °*  ^  ^"^"d'y  nation.  No  fraudu- 
I  nited  States,  in  carrying  on  a  covered  trade,  by  such  expatria- 

a^ 'con'.  J''  ^^"  ^"""^  "•  ^^'"■''^  b"^^"^^--  ^°^  anv'^purposeswhich 
tabUshr  or.h  ''  v''f*'ri*°  .^l"  ^^"^"'  "''^  ^^''^i^h  seems  es- 
Inan  h  K  K  ''"''^!f*  ''i^^''  "^h*  "^  expatriation.  That,  being 
L  i,l  i*'";?'7r^  subject,  he  had  a  lawful  right  to  trade  to 
If,n^-  •  *^"^''^0"Pe-  anv  law  of  the  United  States  notwith- 
t£  ?T"f;J,"c/."'^'  *"'"'  ^''i  P"'-chased.  either  from  citizens  of 
tJie  L'nited  States,  or  any  other  vessel  documented  and  adopted 


'.:! 


162  JUDGMENTS  OF  THE  SUPREME  COURT 

by  the  Danish  laws.  I  do  not  rely  more  than  it  deserves,  on  the 
circumstance  of  Jared  Shattuck's  burghership  of  which  the  best 
evidence,  to-wit,  the  brief,  or  an  authenticated  copy,  has  not  been 
produced.  I  know  well,  that  this  brief  alone,  unaccompanied  by 
the  strong  ingredients  in  his  case,  might  be  fallacious.  I  take  the 
whole  combination  to  satisfy  me  of  his  being  bona  Me  a  Danish 
adopted  subject ;  and  altogether  it  amounts,  in  my  mind,  to  proof 
of  expatriation. 

The  master  (Wright)  produces  his  Danish  burgher's  brief.  He 
is  a  native  of  Scotland.  But  even  the  British  case  of  Pollard  v. 
Bell,  8  T.  R.  435,  to  which  I  have  been  referred,  shows  that,  with 
all  the  inflexibility  evidenced  in  the  British  code,  on  the  point  of 
expatriation,  a  vessel  was  held  to  be  Danish  property,  if  docu- 
mented according  to  the  Danish  laws,  though  the  master,  who  had 
obtained  a  Danish  burgher's  brief,  was  a  Scotchman.  It  shows, 
too,  that  in  the  opinion  of  the  British  judges  (who  agree,  on  thi^ 
point,  with  the  general  current  of  opinions  of  civilians  and  wr  ' 
ers  on  general  law),  the  municipal  laws  or  ordinances  of  a  c<~i 
try  do  not  control  the  laws  of  nations.  The  British  courts  li  x 
gone  great  lengths  to  modify  their  ancient  feudal  law  of 
giance,  so  as  to  moderate  its  rigor,  and  adapt  it  to  the  stat 
the  modem  world,  which  has  become  most  generally  commercia. 
They  hold  it  to  be  clearly  settled,  that  although  a  natural-bom 
subject  can  not  throw  off  his  allegiance  to  the  king,  but  is  always 
amenable  for  criminal  acts  against  it,  yet  for  commercial  purposes 
he  may  acquire  the  rights  of  a  citizen  of  another  country.  (Com. 
Rep.  677,  689.)  I  cite  British  authorities  because  they  have  been 
peculiarly  tenacious  on  this  subject.  Naturalization  in  this  coun- 
try may  sometimes  be  a  mere  co.er;  so  may,  and.  no  doubt,  fre- 
quently are,  burghers'  briefs.  But  the  case  of  Shattuck  is  accom- 
panied, with  so  many  corroborating  circumstances,  added  to  his 
brief,  as  to  render  it,  if  not  incontrovertibly  certain,  at  least,  an  un- 
fortunate case  on  which  to  rest  a  dispute  as  to  the  general  subject 
of  expatriation.  I  am  not  disposed  to  treat  lightly  'at  attachment 
a  citizen  of  the  United  States  ought  to  bear  to  his  ctnp.ry.  There 
are  circumstances  in  which  a  citizen  ought  not  to  expatriate  him- 
self. He  never  should  be  considered  as  having  changed  his  alle- 
giance, if  mere  temporar>'  objects,  fraudulent  designs,  or  incom- 
plete change  of  domicil,  appear  in  proof.  If  there  are  any  such 
in  Shattuck's  case,  they  do  not  appear,  and  therefore,  I  mtist  tak'- 
it  for  granted  that  they  do  not  exist.  That,  therefore,  the  ulti- 
mate destniction  of  his  voyage,  and  sale  of  his  carjro.  are  illeenl 

The  vessel  must  he  restored,  and  the  amount  of  sales  of  the 
cargo  paid  to  the  claimant,  or  his  lawful  aijent.  together  with 
co.sts,  and  such  damages  as  shall  be  assessed  bv  thp  clerk  of  this 
court,  who  is  herehv  directed  to  inquire  into  and  report  the  amount 
thereof.     And  for  this  purpose,  the  clerk  is  directed  to  associate 


t 


ff; 


MURRAY  ..  SCHOONER  CHARMING  BETSY  163 

rescue  from  th.p       l    '^^''  °^   ^*^  CAamu,^  Betsy,  by  the 
28th  April,  1801.  (Signed)     Richard  Peters. 

ssors^  a  final  decree  was  entered  for  $20,594.16  damages    with 

: -^   'JTJ^:^'''"''-  *''  "'^"^"*  ^PP^^'^d  '«  the  circuTVourt 

-.  ad  udged    "that  the  decree  of  the  district  court  be  affinned   ro 

-  -t  d,rects  restitution  of  the  vessel,  and  payment  to  theTa  mant 

he-  costs  and  charges  there,  according  to  the  account  e:^hibited  by 

tK.    the  said  decree  be  reversed  for  the  residue,  each  party  to  pav  his 
.wn  costs,  and  one  moiety  of  the  custody  and  wharfagVbiL  for  keet 
i^r^     -t^restitution  to  the  claimant."     From  this  d«:Ter 
ooth  parties  appealed  to  the  suj-.-eme  court. 

Jdaimart  "m  "^'^' "* ''''  *^™'  ^^  ^^-'-'  ^^^  and  Mason,  for 
the  c'aimant.    No  counsel  was  present  for  the  libellant 

ShSLl  '^"'T"'  ''.r'  '°"*'"^'^^  '^^*  '^'  '''^'  ^^  the  schooner  to 
Shattuck  was  bona  fide,  and  that  he  was  a  Danish  subject.  That 
although  she  was  m  possession  of  French  mariners,  she  was  not  an 

tZJr"^  T"'  "i"^'"  '*''  ''''  °^  *^°"^  ^^-  -hich  authorized 
If  W,  k!"  ''"'"'•  ^^""^  "^""■'^'^  ^'■'=  ""t  bound  to  take  notice 
of  hostilities  bet«,een  two  nations,  unless  war  has  been  declared:  that 
the  right  of  search  and  seizure  is  incident  only  to  a  state  of  war  That 
neutrals  are  not  bound  to  take  notice  of  our  municipal  regulations- 
that  tne  non-.ntercourse  act  was  simply  a  municipal  regulation,  b-nd- 
mfr  only  i  in  cur  ov.n  citizens,  and  had  nothing  to  do  with  the  law  of 
n_  .ons;  .  onld  give  no  right  to  search  a  neutral.  That  in  all  cases 
Where  a  .s...are  is  made  under  a  municipal  law,  probable  cause  is  no 
justification  unless  it  is  made  so  by  the  municipal  law  under  which 
the  seizure  is  made. 

As  to  the  position  that  the  sale  was  bom  fide,  the  counsel  for  the 
claimant  relied  on  the  evidence,  which  came  up  with  the  transcript  of 


\i 


164 


JUDGMENTS  OF  THE  SUPREME  CCiURT 


I 


the  record,  which  was  very  strong  and  satisfactory.  Upon  the  ques- 
tion whether  Shattuck  was  a  Danish  subject,  or  a  citizen  of  the  United 
States,  ;t  was  said  that  although  he  was  born  in  Connecticut,  yet  there 
was  no  evidence  that  he  had  ever  resided  in  the  United  Stotes,  since 
their  separation  from  Great  Britain.  But  it  appears  by  the  testimony 
that  he  resided  in  St.  Thomas,  during  his  minority,  and  served  his 
apprenticeship  there.  That  he  had  married  into  a  family  in  that  island ; 
had  resided  there  ever  since  the  year  1789;  had  compHed  with  the  laws 
which  enabled  him  to  become  a  burgher,  and  had  carried  on  business 
as  such,  and  had  for  some  years,  been  the  owner  of  vessels  and  lands. 
Even  if,  by  birth,  he  had  been  a  citizen  of  the  United  States,  he  had 
a  right  to  expatriate  himself.  He  had,  at  least,  the  whole  time  of  his 
minority  in  which  to  make  his  election  of  what  country  he  would 
become  a  citizen.  Every  citizen  of  the  United  Stetes  has  a  right  to 
expatriate  himself  and  become  a  citizen  of  any  other  country  which 
he  may  prefer,  if  it  be  done  with  a  bona  Hde  and  honest  intention,  at 
a  proper  time,  and  in  a  public  manner.  While  we  are  inviting  all  the 
people  of  the  earth  to  become  citizens  of  the  United  States,  it  surely 
does  not  become  us  to  hold  a  contrary  doctrine,  and  deny  a  similar 
choice  to  our  own  citizens.  Circumstances  may,  indeed,  show  the  in- 
tention to  be  fraudulent  and  collusive,  and  merely  for  the  purpose  of 
illicit  trade,  etc.  But  such  circumstances  do  not  appear  in  the  prtsent 
case.  Shattuck  was  fairly  and  bona  fide  domiciliated  at  St.  Thomas 
before  oiir  disputes  arose  with  France.  The  act  of  Congress,  "further 
to  suspend,"  etc.,  can  not,  therefore,  be  considered  as  operating  upon 
such  a  person.  The  first  act  to  suspend  the  intercourse  was  iwssed 
on  the  13th  of  June,  1798  (1  U.  S.  Stat.  565),  and  expired  with  tho 
end  of  the  next  session  of  Congress.  The  next  act,  "further  to  sus- 
pend," etc.,  was  passed  on  the  9th  of  February.  ir<)9  (ibid.  613),  aii.l 
expired  on  the  3d  of  March,  1800.  The  act  upon  which  the  present 
libel  is  founded,  and  which  has  the  same  title  with  the  last,  was  passnl 
on  the  27th  of  February.  1800  (2  ibid.  7).  All  the  acts  are  contine<i 
in  their  operations  to  persons  resident  *ilhin  the  United  States,  or 
under  their  protection. 

She  was  not  such  an  armed  French  vessel  as  comes  within  tlu- 
description  of  those  acts  of  Congress,  which  authorized  the  hostilities 
with  France.  She  had  only  one  musket,  twelve  ounces  of  powder,  ami 
twelve  ounces  of  lead.  The  only  evidence  of  other  arms  arises  from 
the  deposition  of  one  McFarian.     But  he  did  not  go  on  board  of  her 


MURRAV  V.  SCHOONER  CHARNfING  BETSV  155 

until  some  days  after  the  capture,  and  his  deposition  is  inadmissible 
testimony,  because  he  was  entitled  to  a  share  of  the  prize-mTnev     f 

Sotrt/'""  •"  '=°"'^'""^^  ^"^  ^'^'-"^^  ^  releasXrS  to 
Captam  Murray  appears  among  the  papers,  yet  that  release  was  not 

made,  unt,I  after  the  deposition  was  taken;  and  the  fact  is  expressly 

contradK:ted  by  other  testimony.    The  mere  possession,  by  nine  Frenct 

men,  d.d  not  constitute  her  an  armed  vessel.    She  was  unable  to  annoy 

he  commerce  of  the  United   States,  which  was  the  reason  of  the 

^eeman,  1  Cr.    1.)    The  procds  verbal  is  no  evidence  of  any  fact  but 
.  s  own  existence.    If  she  had  arms,  they  ought  to  have  been  brough 
.n.  as  the  only  competent  evidence  of  that  fact.    No  arms  are  libelled 
^d  none  appear,  by  the  account  of  sales,  to  have  been  sold  in  Mar- 
timque. 

jL^lf-  *''"";  *  "«"tral  unanntd  vessel.  Captain  Murray  had  no 

from  a  state,  of  public  known  wa^  and  not  from  a  municipal  regula- 
.on.    In  time  of  peace,  the  flag  is  to  be  respected.    Until  war  ifde- 
ciared,  neutrals  are  not  bound  to  take  notice  of  it 

J.^L^yT.°^  ^^  '^"  '°"'^'  '^'°^  ''"^^  ^«^'*l«^d  '»>«  the  vessel 
IS  entitled  to  damages?  Captain  Murray  has  libelled  her  upon  the 
non-intercourse  act.  He  does  not  state  that  he  seized  her.  because  she 
was  a  French  armed  vessel,  although  he  states  her  to  be  armed,  at  the 
time  of  capture.  It  has  also  been  decided  bv  both  the  courts  that  she 
is  Danish  property.  If  an  American  vessel  had  been  illegally  captured 
by  Capta.n  Murray,  he  would  have  been  liable  for  damages-  a  fortiori 
in  the  case  of  a  foreign  vessel  where,  from  motives  of  public  policy 
our  conduct  ought  not  only  to  be  just  but  liberal. 

In  case.s  of  personal  arrest,  if  no  crime  has  in  fact  been  committed 
probable  cau.se  .s  not  a  justification,  unless  it  be  made  so  by  municipal 
aw  As  in  the  ca.st  of  hue  and  cry.  he  who  raises  it  is  liable  if  it 
i^  false.  H  the  sheriff  has  a  writ  against  .\.  and  B  is  shown  to  him 
as  the  person,  and  he  arrests  B  instea.l  of  A.  he  is  liable  to  an  action 
of  trespass  at  the  suit  of  B.  (Wair  v.  ffill.  1  Bulst.  149  )  So  f  he 
replevies  wrong  gooils.  or  takes  the  goo,ls  of  one.  upon  a  /?.  fa  ap.ninst 
another.  In  these  cases,  it  i,  no  justification  to  the  officer,  th.it  he 
was  informed,  or  iH-hevcd.  he  was  right.  He  must  in  all  cases  seize  at 
his  peril.    So  it  is  with  all  other  officers,  such  as  those  of  the  revenue 


m 


166 


JUDGMENTS  OF  THE  SUPREME  COURT 


etc.,  probable  cause  is  not  sufficient  to  justify,  unless  the  law  makes  it 
a  justification.  If  the  information  is  at  common  law,  for  the  thing 
seized,  and  the  seizure  is  found  to  have  been  illegally  made,  the  in- 
jured party  must  bring  his  action  of  tre-spass ;  but  by  the  course  of  the 
admiralty,  the  captor,  being  in  court,  is  liable  to  a  decree  against  him 
for  damages.  Tht  Fabius,  2  Rob.,  202.  The  case  of  Wale  v.  HUl, 
in  1  Bulst.  149,  shows  that  where  a  crime  has  not  been  committed,' 
there,  probable  cause  can  be  no  justification.  But  where  a  crime  has 
been  committed,  the  party  arresting  can  not  justify  by  the  suspicion  of 
others ;  it  must  be  upon  his  own  suspicion. 

In  the  case  of  FafiUon  v.  Buckner,  Hardr.  478,  although  the  goods 
seized  had  been  condemned  by  the  commissioners  of  excise,  yet  it  was 
not  held  to  be  a  good  justification.  In  Furviance  v.  Angus,  1  Dall. 
182,  it  was  held  that  an  error  in  judgment  would  not  excuse  an  illegal 
capture :  and  in  LegOse  v.  Champante.  2  Str.  820.  it  is  adjudged  that 
probable  cause  of  seizure  will  not  justify  the  officer.' 

In  3  .-Vnstr.  896,  is  a  case  of  seizure  of  hides,  where  no  provision 
was  made  in  the  law  that  probable  cause  should  b^  a  justification. 
Thi.s  case  cites  Pickering  v.  Truste.  7  T.  R.   53.  what  reason  do 

the  revenue  laws  provide  that  probable  cause  s..„  .je  a  justification, 
if  it  would  be  so,  without  such  a  provision?  In  these  cases,  the  injury 
by  improper  seizures  can  be  but  small  compared  with  those  which 
might  arise  under  the  non-intercourse  law.  Great  Britain  has  never 
made  probable  cause  an  excuse  for  .seizing  a  neutral  vessel  for  violating 
her  municipal  laws.  .\  neutral  vessel  is  only  liable  to  yonr  municipal 
repilations.  while  in  >our  territorial  jurisdiction;  but  as  stxm  as  she 
K'etN  to  sea.  you  have  lo^t  your  reme<ly :  you  can  not  seize  her  on  the 
high  -eas.  Even  in  Great  Britain,  if  a  vessel  gets  out  of  the  jurisdu-- 
tion  .!f  one  court  of  admiralty,  she  can  not  hv  seized  in  another.  It  i- 
admitted  that  a  law  may  be  passed  authorizing  s!ich  a  seizure.  !)ut 

'The  Ch.  J  obsrrvcd,  that  this  case  was  overruled  rw..  years  altrrwar.Is  in 
a  case  ctted  in  a  n<.te  t,.  Gwillim  s  edition  of  Bac  Adr.'  The  case  riled  in  the 
note  .,  from  12  V  ,n.  17.1,  tit  evidence.  P.  h.  6.  m  which  it  i,  said  ■that  b.rd 
tTv  Baron  Bury,  M.mtaaue  and  Pane,  against  Prkt.  held  that  where  an  officer 
had  made  a  seinire.  and  there  was  .m  information  upon  it.  et. ..  which  went  in 
favour  of  the  pjrtv  who  afterward.  hrn^Hs  trespass:  the  shewing  these  pr<- 
reediriRs  wa^  sufficient  to  excuse  the  officer  It  wa,  connotent  to  make  out  a 
pr.  •>:  ,|f  caii>e   f..r   hi-  doinj?  the  art      Mirh    h    Ge<i  " 

-Thr  case  of  I..'olMe  v  Clwmfaxt^  wa'  in  2  Geo.  II.  That  cited  in  the  note 
to  R.UV  al.  referrr.!  ...  nv  the  (h  !  wa'  i-  Geo  I  The  mistake  arises  from 
th'    n,,te   1-1   G.Mli.m,   ,-rl,|„,n   ,u,.   -,-nti-Mn«   the   d.ite  of   the  rase  cited    fr...n 


MURRAY  V.  SCHOONER  CHARMING  BETSV  157 

then  it  becomes  a  question  between  the  two  nations.  If  the  present 
crcumstanccs  are  sufficient  to  raise  a  probable  cause  for  the  sei^re 
and  .f  such  probable  cause  is  a  just.fication.  ,t  will  destroy  the  trade 
of  the  Danish  islands.  The  inhabitants  speak  our  language,  they  buy 
our  ships,  etc^   It  w.ll  be  highly  ir.jurious  to  the  intereslTofthe  Jnited 

fu^Uh  tn  th     .r"!.  "*"  '""'"'"  ''''''  ""^^  «^  """P'^'"'  't  would 
furnish  to  the  Danish  nation.     U  a  private  armed  vessel  had  made 

this  seizure,  the  captam  and  owner-  would  have  been  ciearlv  liable  on 

their  bond,  which  the  law  obliges  them  to  give.     The  object  of  this 

art  of  Congress   was  more  to  prevent  our   vessels   falling  into   the 

F::n1ht.lnds'^^"^^  "^"  ''  -'''  "^  '^  -  —  ^y  ---  - 
Even  if  a  Danish  vessel  should  carry  .\nier,can  papers  and  .Amer- 
ican colors,  It  would  be  no  justification.  In  a  state  of  ,eace,  we  have 
no  right  to  say  they  shall  not  use  them.  ,f  thev  plea.se.  In  t.me  of 
war.  double  papers,  or  throwing  over  papers,  are  probable  causes  of 
seizure,  but  this  does  not  alter  the  property :  ,t  is  no  cause  of  condem- 
nation.   The  vessel  is  to  he  restored,  but  without  damages 

The  mode  of  ascertaining  the  damages  adopted  bv  the  district  court 
IS  conformable  to  the  usual  ,,ractice  in  courts  of  admiralty  See  Mar- 
riott s  Rep.,  and  m  the  same  book.  p.  1^.  ,n  the  case  of  The  Vcmderlee 
liberal  damages  were  given. 

In  the  revenue  laws  of  the  United  States,  vol.  4,  p.  391,  probable 
cause  IS  made  an  e.xcuse  for  the  seizure:  but  no  such  provi,sion  i.  or 
ought  to  have  been,  made  in  the  non-intercourse  law  The  powers 
Riven  were  *.,  liable  to  abu^e  that  the  commander  ought  to  act  at  his 

■>  p 'r  ^o/!  I"''*"  mentioned  the  case  of  The  Salh.  <  aptain  fov.  ,n 
-  Rob.  185  (.\mer.  edit.),  where  a  court  of  vice-.-.  ,,"ra!tv  had  decreed 
in  a  revenue  case,  that  there  was  no  probable  cau^e  of  seizure 

This  cause  came  on  again  to  be  argued,  at  this  term,  :,,  Dallas  for 
!!•.'    ibellant.  and  Martin  and  Key.  for  the  claimant 

/•d/Zof,  as  a  preliminary  remark,  observed,  that  the  ind;;e  of  the  dis 
tnc,  court  had  referred  to  the  clerk  .md  his  ,-,.,ociates  tr,  ascertain 
whether  any  and  what  salvage  shr.ild  be  allowed  This  was  an  im 
proper  delegation  of  his  authoritv.  not  vvrirr.mted  '.v  tl-c  onrtire  ,  ,f 
cotirts  of  admirnltv.  nor  bv  the  natn-  of  h„  office  .Although  'hev 
had  not  reporte-l  upon  this  point,  yet  hr  -nhmitted  ,t  to  th.-  ,-.,nrt  for 
their  consideration 


i 


t'-'j^cisrrwc-  -^^:532i£a 


168 


H  * 


JUDGMENTS  OF  THE  SUI'RF.MK  COURT 


m 


After  stating  the  facts  wliicli  appeared  u])oii  the  record,  and  sucli 
as  wore  either  a<hnittcd  or  proved,  lie  divided  his  argument  into  tlircc 
general  points. 

1.  Tiiat  Jared  Shattuck  was  a  citizen  of  the  United  States  at  the 
time  of  capture  and  recapture;  and  therefore,  the  vessel  was  subject 
to  seizure  and  condemnation,  under  the  act  of  Congress  usually  called 
the  non-intercourse  act. 

2.  That  she  w.is  in  danger  of  condemnation  by  the  French,  aiu! 
therefore,  if  not  lial>lo  to  condemnation  under  the  act  of  Congress. 
(.  aptain  Murray  wa.s  at  least  entitled  to  salvage. 

^■  1  hat  if  neither  of  the  two  former  positions  can  be  maintain^ 
vet  (.apt..in  Murray  l.a.l  probable  cause  to  seize  and  bring  her  in.  ani 
therefore,  he  iMl^'ln  not  to  be  decreed  to  pay  damages. 

I.  The  vessel  w.is  liabl,-  to  seizure  and  condemnation  under  the  iion- 
Miten-onrse  act;  ShatHu-k  lu-ing  a  citizen  of  the  Inited  St.ites  at  tl'<. 
time  .M  rc.-apturo.    Captain  Mt^rrav's  authority  to  capture  The  Clum,:- 
i>u:  Bctss  deivii.K  uixm,  :!k-  municipal  laws  of  the  United  States.  c.\- 
iw.in.le.l  by  his  nistniotion.s.  an<i  the  law  of  nations.     I'.efore  the  tmr- 
mtercvnirse  act.  measures  bad  been  taken  by  Congress  to  prevent  .ir,  ; 
repel  the  injuries  to  our  coninierce  which  were  daily  i>erpetrated  '•> 
Irencli  cruiser.,.     By  the  act  of  JStb  May.  1708  d  U.  S.  .Stat.    56\  ' 
.mthonty  was  -iven  t-  ciptiirc  •■armed  vessels  sailing  iiiuler  auth,T:t . 
.^r  pretense  of  authority,   from  the  republic  of  France."  etc  .  an  i  • 
retake  .Tiiy  c.iptiired   .Xnierican   vessel.      The  act  of  JSth  June.    ]? '< 
i  ihd.    .v-4\  regnl.ites  the  proceedings  against  such  ves.sels.  when  cv 
tnre.l.  ascertams  the  r.ate  of  salvage  t..r  vessels  recaptured,  an-!  (- - 
vulcs  lor  t!ie  confinement  of  prisoners,  etc.     The  act  of  luly  Ot),    I,"  - 
I ./'../.    .>r8).  authorizes  the  capture  of  armed  French  ve>sels  anNu;  e- 

u(>on  the  high  seas,  and  provides  for  the  -ranting  commissi    ,s  to  •  - 

vate  armed  vessels,  etc 

The  right  to  retake  an  armed  or  unarmed  neutral  vessel,  in  the     .- 

01  the  French,  is  nowhere  expressly  given  ;  but  is  an  incident  -r  u  • 

out  ot  the  state  of  war;  and  is  implied  in  several  acts  of  (^.n-,. 
Ihis  «,is  derided  in  the  case  of  Talbot  v.  Seem,m.  in  this  conn     • 

.\ngust  term,  \m   >  1  (>    m.     The  right  of  recapture,  carrv.nc  v.  • 

It  the  nght  of  s.-,!vaee   gave  the  riaht  of  bringing  info  port:  ..n.'  t     ■ 

i>"rt  must  !>e  a  port  of  the  captor. 

rbr  first  non-intercourse  act  was  p.issed  June  1,1th.  1708     1   ''    - 

>-'.t     ^'•'i  :  i.  -inv'.ir  act  vv.i=  p.isse.l  Febni.nrv  0th.  1700  ,  ,'-iV/    •  '  = 


MURRAY  V   SCHOONER  CHARMING  BETSV  159 

c^a.  hvs.  tor  tne  regulation  ot  our  own  commerce,  but  as  a  part  of 

it  wa.,  .,uoad  hoc  tantamount  to  a  declaration  of  war 

Happily,  there  IS  not.  and  has  not  been,  in  the  practice  of  our  gov- 
ernment, an  esubhshed  for:n  of  declaring  war.  Congress  have  "he 
P^.wer.  and  may.  Ly  one  general  act.  or  by  a  varietv  of  acts  place  he 
nation  m  a  sute  of  war.  So  far  as  Congress  have'  thought  pro^r  to 
ieg^sbte  us  into  a  state  of  .ar.  the  law  of  nations  in  war  is'toTppI 
By  the  genera!  aws  ot  war.  a  belligerent  has  a  right  not  onlv  to  «arch 
r.  her  enemy,  but  for  her  citizens  trading  with  her  enemv.  'l  auX 
^.e.  tor  this  pc.t.or  were  necessary-,  a  variety  of  cases  decided  by  ^r 
U  iiiiam  :5C0tt  might  be  cited.  '"cu  oy  ^ir 

As  to  the  present  case.  France  wa,  to  be  considered  as  our  enemv 
T^  non-intercourse  act  of  im  prohibits  all  commercial  inter^  e 

between  any  person  .r  persons  resident  within  the  United  .States  o 
•nder  their  protection,  and  any  person  or  persons  resident  within  the 

An.  de.la.es  that     any  ship  or  vessel,  owned,  hired  or  emploved    in 

t^r    "ar"'/   '"•■  ""'^"  "  ^^""'  ''''''''  -'^-    '-  ^n-- 
■■'^'J-    7     !,  ''  '"'""'  '^'''•'■-   '''^'^"''  «-'l^ewhere.-  etc 

•C  -X  °^;f '•  ''■•;"'■  ''  -'^*"^  ^"^  condemned."  A  citizen  of 
■he  L  nued  Mates,  resident  -elsewhere."  must  mean  a  citizen  resident 
.:  a  neutral  country.  If  Shattuck  was  such  a  citizen,  the  case  is  c  earK 
-t.nin  the  statute     It  is  not  necessary-  that  the  vessel  should  i    eg i^ 

r -r-^ee  of  1  v^  '"^-''"T^  "  ""'■^'  """*^^  '"^  '^^'^  ^^e  vessel  the 
l"  •  ■  ..egc«  of  an  Amencan  bottom.  .Vor  is  it  neces^arv  that  she  sh-uld 
••■ave  l*en  huilt  in  the  United  States. 

By  the  .^th  section  of  the  act  of  2/-th  Februan-.  im  ,  ^  u  ^  Stat 
■^.  reasonable  suspicion  is  made  a  iu=rification  of  seizure,  ands^nd- 
■^  .      or  adnioication.     The  officer  ..  l^unA  tc  act  upon  suspicion 

■  he  -mature  j  the  vovage.  Alth.vjgh  the 
■.  ..o«  )f  the  United  States,  still.  •-- 
rr^-.i  to  Seize  and  send  in  must  e.vter 
\nieric.in  vesseN. 

"■■:■'   •-  t':e  c.^ntemp.->raneoi:«  ex-r^Ti'ti  -   <;-,yp,~  v^ 


■mature    t  the  vovage.    .^Ith-^ugh  the  a.-r  .f  Co.grc.  mentions  onlv 

the  r..if.:rf  of  th.-  case,  the 
t'^  app.irent  .is  well  as  real 


t'lp  instructions 


•^iSi'^si^^.^y.'i 


ff 


170 


JUDGMENTS  OF  THE  SUPREME  COURT 


of  the  executive.'  The  words  of  these  instructions  are:  "You  are  not 
only  to  do  all  that  in  you  lies,  to  prevent  all  intercourse,  whether  direct 
or  circuitous,  between  the  ports  of  the  United  States  and  those  of 
France  and  her  dependencies,  in  cases  where  the  vessels  or  cargoes  are 
apparently,  as  well  as  really  American,  and  protected  by  American 
papers  only,  but  you  are  to  be  vigilant  that  vessels  or  cargoes,  really 
American,  but  covered  by  Danish  or  other  foreign  papers,  and  bound 
to  or  from  French  ports,  do  not  escape  you."  The  law  and  the  in- 
structions having  thus  made  it  his  duty  to  act  on  reasonable  suspi- 
cion, he  must  be  safe,  though  the  ground  of  suspicion  should  eventually 
be  removed. 

Under  our  municipal  law,  therefore,  the  following  propositions  are 
maintainable:  1.  That  a  vessel  captured  by  the  French,  sails  under 
French  authority ;  and  if  armed,  is,  quoad  hoc,  a  French  armed  vessel. 
The  degree  of  arming  is  to  be  tested  by  the  capacity  to  annoy  the 
unarmed  commerce  of  the  United  States.  2.  The  right  to  recapture 
an  unarmed  neutral  is  an  incident  of  the  war,  and  implied  in  the  rep^u- 
lations  of  Congress.  3.  The  non-intercourse  law  justifies  the  seizure 
of  apparent,  as  well  as  of  real  American  vesse! 

Nor  does  this  doctrine  militate  with  the  law  of  nations.  A  war,  in 
fact,  existed  between  the  United  States  and  France.  An  army  was 
raised,  a  navy  equipped,  treaties  were  annulled,  the  intercourse  was 
prohibited,  and  commissions  were  granted  to  private  armed  vessel> 
Every  instrument  of  war  was  employed ;  but  its  operation  was  con- 
fined to  the  vessels  of  war  of  France  upon  the  high  seas.  So  far  as 
the  war  was  allowed,  the  laws  of  war  attached. 

That  it  was  a  public  war,  was  decided  in  the  case  of  Bos  v.  Tini;y. 
in  this  court,  February  term,  1800  {4  Dall.  37).  No  authorities  are 
necessary  to  show  that  a  state  of  war  may  exist  without  a  public 
declaration.  And  the  ripht  to  search  follows  the  state  of  war.  Vatttl. 
lib.  3,  c.  7,  §  114:  The  .\faria.  1  Rob.  304;  Garrelt  v.  KensinKlon.  8 
T.  R.  234.  Whether  the  vessel  was  American  or  Danish,  she  was 
taken  out  of  the  hands  of  onr  cnemv. 


'  Upon  Mr.  Dallas's  "ffprinR  to  read  the  instructions. 

Chase.  I.,  said  he  was  alwavs  against  reading  the  instnictions  of  the  execu- 
tive :  because  if  they  ko  no  further  than  the  law,  they  are  unnecessary ;  if  they 
exceed   it.  they  are  not  warranted 

Marshall,  Ch.  J  1  understand  it  to  be  admitted  by  both  p.irties,  that  the 
instnictions  are  part  of  the  record  The  construction,  or  the  eflFect  they  are 
to  have,  will  be  the  subject  of  further  consideration      They  may  hf  n-ad. 

CHASf  I.  I  can  only  say.  !  am  against  it.  and  I  wish  it  to  J>e  Kcnerally 
known      !  think  it  a  bad  practice,  .md  -hM  .ilways  (rive  my  voice  against  it 


MURRAY  V.  SCHOONER  CHARMING  BETSY 


171 


The  law  of  nations  in  war  gives  not  only  tSe  right  to  search  a  neutral, 
but  a  right  to  recapture  from  the  enemy.  On  this  point,  the  case  of 
Talbot  V.  Seeman  is  decisive,  both  as  to  the  law  of  nations,  and  as  to 
the  acts  of  Congress,  and  that  the  rule  applies  as  well  to  a  partial  as 
to  a  general  war.  Captain  Murray's  authority,  then,  was  derived,  not 
only  from  our  municipal  law,  and  his  instructions,  but  from  the  law 
of  nations.  If  he  has  pursued  his  authority  in  an  honest  and  reason- 
able manner,  although  he  may  not  be  entitled  to  reward,  yet  he  can  not 
deserve  punishment. 

It  remains  to  consider  whether  the  vessel  was,  in  fact,  liable  to  seiz- 
ure and  condemnation.  What  were  the  general  facts  to  create  sus- 
picion at  the  time?  1.  The  vessel  was  originally  American.  The 
transfer  was  recent,  and  since  the  non-intercourse  law.  The  voyage 
was  to  a  dependency  of  the  French  Republic,  and  therefore  prohibited, 
if  she  was  really  an  American  vessel.  2.  The  owner  was  an  American 
by  birth.  The  master  was  a  Scotchman.  The  crew  were  not  Danes, 
but  chiefly  Americans,  who  came  from  Baltimore.  3.  The  proch  verbal 
calls  her  an  American  vessel ;  which  was  corroborated  by  the  declara- 
tions of  some  of  the  crew.  4.  The  practice  of  the  inhabitants  of  the 
Dani.sh  islands  to  cover  American  property  in  such  voyages. 

What  was  there,  then,  to  dispel  the  cloud  of  suspicion,  raised  by 
these  circumstances  ?  1.  The  declarations  of  Wright,  the  master,  whose 
testimony  was  interested,  inconsistent  with  itself,  and  contradicted  by 
others.    2.  The  documents  found  on  board. 

These  were  no  other  than  would  have  been  found,  if  fraud  had  been 
intended.  The.se  were,  1.  The  sea-letter  or  pass  from  the  Kovemor- 
gcneral  of  the  Danish  islands,  who  did  not  reside  at  .St.  Thomas,  but 
at  St.  Croix.  It  states  only  by  way  of  recital  that  the  vessel  was  the 
property  of  Jared  Shattuck.  a  burgher  and  inhabitant  of  St.  Thomas. 
It  does  not  state  that  he  was  naturalized  or  a  subject  of  Denmark. 
2.  The  muster-roll,  which  states  the  names  and  nnmlier  of  the  master 
and  crew,  who  were  ten  besides  the  captain,  viz..  William  Wright, 
master;  David  Weems,  John  Robinson,  Jacob  Davidson.  John  Lampev. 
John  Nicholas.  Frederick  Jansey.  George  Williamson,  William  George. 
Pnidentio.  a  Corsican,  and  Davy  Johnson,  a  N'orwt  ijian.  There  is  but 
one  foreign  name  in  the  whole.  Wright,  in  his  deposition,  savs  that 
three  were  .Americans,  one  a  Norwegian.  .inH  the  rest  were  D.ines. 
Dutch  and  Spaniards.  The  muster-roll  was  not  on  natli.  'nit  w.t^  the 
mere  declaration  of  the  owner      3    The  invoice,  whieli  onlv  <.iv<  that 


172 


JUDGMENTS  OF  THE  SUPREME  COURT 


Shattuck  was  the  owner  of  the  cargo.  4.  The  bill  of  lading,  which 
says  that  he  was  the  shipper.  5.  The  certificate  of  the  oath  of  prop- 
erty of  the  cargo,  states  only  by  way  of  recital,  that  Shattuck,  a 
burgher,  inhabitant  and  subject,  etc.,  was  the  owner  of  the  cargo,  but 
says  nothing  of  the  property  in  the  vessel.  By  comparing  this  cer- 
tificate with  the  oath  itself,  it  appears  that  the  word  "subject"  has  been 
inserted  by  the  officer,  and  was  not  in  the  original  oath.  6.  Shattuck's 
instructions  to  Captain  Wright.  7.  The  bill  of  sale  by  Phillips,  the 
agent  of  the  American  owners,  to  Shattuck ;  but  his  authority  to  make 
the  sale  was  not  on  board. 

To  show  what  little  credit  such  documents  are  entitled  to,  he  cited 
the  opinion  of  Sir  W.  Scott,  in  the  case  of  The  yigilantia,  1  Rob. 
6-8  (Amer.  ed.),  and  in  the  case  of  The  Odin,  (ibid.  208-211).  The 
whole  evidence  on  board  was  a  mere  custom-house  aflFair,  all  depend- 
ing upon  his  own  oath  of  property.  His  burgher's  brief  was  not  on 
board,  nor  did  it  appear,  even  by  his  own  oath,  that  Shattuck  was  a 
burgher.  And  no  document  is  yet  produced  in  which  he  undertakes 
to  swear  that  he  is  a  Danish  subject.  Such  documents  could  not  re- 
move a  reasonable  suspicion  founded  upon  such  strong  facts.  There 
could  never  be  a  seizure  upon  suspicion,  if  this  was  not  warrantable 
at  the  time. 

What  has  appeared  since,  to  remove  the  suspicion,  and  to  prove 
Shattuck  to  be  a  Danish  subject?  All  the  original  facts  remain,  and 
the  case  rests  on  Shattuck's  expatriation,  whence  arise  two  inquiries: 
1.  .As  to  the  right,  in  point  of  law,  to  expatriate.  2.  As  to  the  exercise 
of  the  right,  in  fact. 

1.  .As  to  the  right  of  expatriation.  He  was  a  native  of  Connecticut, 
and  for  aught  that  appears  in  the  record,  remained  here  until  the  year 
1789,  when  we  first  hear  of  him  in  the  island  of  St.  Thomas.  This 
was  after  the  revolution,  and  therefore,  there  can  be  no  question  as  to 
election,  at  least,  there  is  no  proof  of  his  election  to  become  a  subject 
of  Denmark. 

If  the  account  of  the  case  of  Isaac  Williams,  1  Tuck.  Bl.,  part  1, 
.App.  p.  436,*  is  correct,  it  was  the  (Opinion  of  Ch.  J.  Ellsworth,  that  a 


'  Thr  state  of  the  case  anH  the  opinion  of  Ch.  J.  Ellsworth,  as  extr.irtrd  hy 
JuHrc  Tucker  from  "The  Xniional  .\f<ina:itir."  No.  3.  p.  2S4,  are  as  follows  : 

On  the  trial  of  I<aac  Williams  in  the  District  (qu.  Circuit^)  Court  of  C.>n- 
necticiit.  Feh  27,  1797,  for  acceptitiR  ,i  commission  under  the  French  Repiihlic. 
and  under  the  authority  thereof  committinfj  act*  of  hostility  againtt  Credit 
Britain,  the  defendant  nlleRed,  and  offered  to  prove,  that  he  had  expatriatnl 
himself   from  the  I'nited  States  and  heconic  a  French  citizen   hefore  the  com- 


MURRAY  V.  SCHOONER  CHARMING  BETSY 


173 


citizen  of  the  United  States  could  not  expatriate  himself.  That  learned 
judge  is  reported  to  have  said  in  that  case,  that  the  common  law  of 
this  country  remains  the  same  as  it  was  before  the  revolution.  But  in 
the  cas-  of  Talbot  v.  Janseti.  3  Dall.  133.  this  court  inclined  to  the 
opinion  that  the  right  exists,  but  the  difficulty  was,  that  the  law  had 
not  pointed  out  the  mode  of  election  and  of  proof. 

It  must  be  admitted,  that  the  right  does  exist,  but  its  exercise  must 
be  accompanied  by  three  circumstances:  1.  Fitness  in  point  of  time. 
2.  Fairness  of  intent.    3.  Publicity  of  the  act. 

But  the  right  of  expatriation  has  certain  characteristics,  which  dis- 
tinguish it  from  a  locomotive  right,  or  a  right  to  change  the  domicil. 
By  expatriation,  the  party  ceases  to  be  a  citizen  and  becomes  an  alien. 
If  he  would  again  become  a  citizen,  he  must  complv  with  the  terms 
of  the  law  of  naturalization  of  the  country,  although  he  was  a  native. 

mencement  of  the  war  between  France  and  England.  This  produced  a  question 
as  to  the  right  of  expatriation,  when  Judge  E:i.lsworth,  then  Cliief  Justice  of 
the  United  States,  is  said  to  have  delivered  an  opinion  to  the  following  effect. 

"The  comiti..n  l.iw  of  this  country  remains  the  same  as  it  was  before  the 
revolution.  The  present  question  is  to  be  decided  by  two  great  principles ;  one 
l^.  that  all  the  members  of  a  civil  community  are  bound  to  each  other  by  com- 
pact: the  other  is,  that  one  of  the  parties  to  this  compact  can  not  dissolve  it 
by  his  own  act.  The  compact  between  our  community  and  its  members  is, 
that  the  community  shall  protect  its  members:  and  on  the  part  of  the  mem- 
bers, that  they  will  at  all  times  be  obedient  to  the  laws  of  the  community  and 
faithful  to  its  defense.  It  necessarily  results  that  the  member  can  not  dissolve 
the  compact  without  the  consent,  or  default  of  the  community.  There  has 
been  no  consent,  no  default  Express  consent  is  not  claimed;  but  it  is  argued 
that  the  consent  of  the  community  is  implied,  by  its  policy,  its  condition,  and 
Its  acts.  In  countries  so  crowded  with  inhabitants  that  the  means  of  sub- 
sistence are  difficult  to  be  obtained,  it  is  reason  and  policy  to  permit  emigra- 
tion;  but  our  policy  is  different,  for  our  country  is  but  scarcely  settled,  and 
we  have  no  inhabitants  to  spare.  Con.ent  has  been  argued  from  the  condition 
of  the  country,  because  we  are  in  a  sute  of  peace.  But  though  we  were  in 
peace,  the  war  had  commenced  in  Europe;  we  wished  to  have  nothing  to  do 
with  the  war— but  the  war  would  have  something  to  do  with  us.  It  has  been 
difficult  for  us  to  keep  out  of  the  war— the  progress  of  it  has  threatened  to 
involve  us.  It  has  lieen  necessary  for  our  government  to  be  vigiLint  in  restrain- 
ing our  own  citizens  from  those  acts  which  would  involve  us  in  hostilities. 

The  most  visionary  writers  on  this  subject  do  not  contend  for  the  principle 
in  the  unlimited  extent,  that  a  citizen  may  at  any,  and  at  all  times,  renounce 
his  own,  and  join  himself  to  a  foreign  country. 

Consent  has  been  argued  from  the  acts  of  our  government  pt-rmitting  the 
naturalization  of  foreigners.  When  a  foreigner  presents  himself  here,  we  do 
not  inquire  what  his  relation  is  to  his  own  country;  we  have  net  the  means 
"t  knrvvmg.  and  the  inquiry  would  hv  indelicate:  we  leave  him  to  judge  of 
I'nat.  If  he  embarrasses  himself  by  contracting  contradictory  obligations,  the 
fault  and  folly  are  his  own  :  but  this  imp'ies  no  consent  of  the  government  that 
our  own  citizen-  should  also  expatriate  themselves.  It  is  therefore  mv  opinion, 
tliat  these  facts  which  tlie  prisoner  offers  t^  prove  iti  his  defen-c,  are  totally 
irrelevant,"  etc  The  prisoner  was  accortlinnly  founil  guilty,  fined  and  im- 
prisoned. 


174 


JUDGMENTS  OF  THE  SUPREME  COURT 


But  by  a  mere  removal  to  another  country,  for  purposes  of  trade, 
whatever  privileges  he  may  acquire  in  that  country,  he  does  not  ceas^ 
to  be  a  citizen  of  this. 

With  respect  to  other  parties  at  war,  the  place  of  domicil  determines 
his  character,  enem>  or  neutral,  as  to  trade.  But  with  respect  to  his 
own  country,  the  change  of  place  alone  does  not  justify  his  trading 
with  her  enemy ;  and  he  is  still  subject  to  such  of  her  laws  as  apply  to 
cituens  residing  abroad.  The  Hoop,  1  Rob.  165;  Gist  v.  Mason, 
1  T.  R.  g4;  and  particularly  Potts  v.  Bell,  8  ibid.  548,  where  this 
pnnciple  is  advanced  by  Doct.  Nicholl.  the  king's  advocate,  in  p.  555, 
admitted  by  Doct.  Swabey.  in  p.  561,  and  decided  by  the  court. 

This  principle  of  general  law  is  fortified  by  the  positive  prohibition 
of  the  act  of  Congress.  In  France,  the  character  of  French  citizen 
remains,  until  a  naturalization  in  a  foreign  country.  In  the  United 
States,  we  require  an  oath  of  abjuration,  before  we  admit  a  person  to 
be  naturalized.  If  he  was  naturalized,  he  has  done  an  act  disclaiming 
the  protection  of  the  United  States,  and  is  no  longer  bound  to  his 
allegiance.  But  if  he  has  acquired  only  a  special  privilege  to  trade,  it 
must  be  subject  to  the  laws  of  his  country. 

2.  But  has  he,  in  fact,  exercised  the  right  of  expatriation  ?    And  is  it 
proved  by  legal  evidence?     His  birth  is  prima  facie  evidence  that  he 
is  a  citizen  of  the  United  States,  and  throws  the  burden  of  proof  upon 
him.     No  law  has  been  shown,  by  which  he  could  be  a  naturalized 
subject  of  Denmark,  nor  has  he  himself  ever  pretended  to  be  more 
than  a  burpher  of  St.  Thomas.    NVTiat  is  the  character  of  a  burgher, 
and  what  is  the  nature  of  a  burgher's  brief?    It  is  said  that  to  entitle 
a  person  to  own  ships,  there  must  have  been  a  previous  residence ;  hut 
no  residence  is  necessary  to  enable  a  man  to  be  a  master  of  a  Danish 
vessel.    It  is  a  mere  license  to  trade ;  a  permit  to  bear  the  flag  of  Den- 
mark :  like  the  freedom  of  a  corporation.    It  implies  neither  expatria- 
tion, an  oath  of  allegiance,  nor  residence.     The  Argo,  1  Rob     13V 
Pollard  V.  Bell,  8  T.  R.   4.W.     These  cases  show  with  what  facility  a 
man  may  become  a  burgher ;  that  it  is  a  mere  matter  of  purchase,  an.l 
that  it  is  a  character  which  may  be  taken  up  and  laid  aside  at  pleasure, 
to  answer  the  purpojses  of  trade. 

But  there  is  no  evidence  that  he  ever  obtained  even  this  burgher's 
brief.  He  went  from  Connecticut,  a  lad,  an  apprentice  or  clerk,  in 
1788  or  1789:  he  wa<  not  seen  in  business  there  until  1795  or  1796. 
In  goin?,  in  1789.  he  had  no  motive  to  expatriate  himself,  as  there 


MURRAY  V.  SCHOONER  CHARMING  BETSY 


175 


was  then  no  war.  We  find  him  first  trading  in  1796,  after  the  war, 
and  the  law  of  Denmark  forbids  a  naturalization  in  time  of  war.  At 
what  time,  then,  did  he  become  a  burgher?  If  he  ever  did  become 
such,  in  fact,  and  it  was  in  time,  he  can  prove  it  by  the  record 
Wright's  burgher's  brief  is  produced,  and  shows  that  they  are  matters 
of  record.  The  brief  itself,  then,  or  a  copy  from  the  record  duly 
authenticated,  is  the  best  evidence  of  the  fact,  and  is  in  the  power  of 
the  party  to  produce.  Why  is  it  withheld,  and  other  c.v  parte  evidence 
picked  up  there,  and  witnesses  examined  here?  All  the  evidence  they 
have  produced  is  merely  matter  of  inference.  They  have  examined 
witnesses  to  prove  that  he  carried  on  trade  in  St.  Thomas,  owned  ships 
and  land,  married,  and  resided  there.  By  the  depositions,  they  prove 
that  a  man  is  not  by  law  permitted  to  do  these  things,  without  l)eing 
a  burgher;  and  hence,  they  infer  his  burghership. 

These  facts  are  equivocal  in  themselves,  and  not  well  proved.  Cer- 
tificates of  citizenship  are  easily  obtained,  but  are  not  alwavs  true.  This 
is  noticed  by  Sir  W.  Scott,  in  the  cases  before  cited.  A  case  hap- 
pened in  this  country,  United  States  v.  yuiato,  2  Dall.  370;  where  a 
person  having  taken  the  oath  of  allegiance  to  Pennsylvania,  agreeable 
to  the  naturalization  act  of  that  State,  obtained  a  certificate  from  a 
magistrate,  confirmed  by  the  attestation  of  the  supreme  executive  of 
the  State,  that  he  was  a  citizen  of  the  United  States.  But  upon  a  trial 
in  the  circuit  court  of  Pennsylvania,  it  was  adjudged  that  he  was  not 
a  citizen.  Captain  Barney  also  went  to  France,  became  a  citizen,  took 
command  of  a  French  ship  of  war,  returned  to  this  country,  and  is  now 
certified  to  be  a  citizen  of  the  United  States.  So,  in  the  case  of  the 
information  against  the  ship  John  and  Alice,  Captain  Whitesides,  he 
was  generally  supposed  to  be  a  citizen  of  the  United  States.  On  the 
trial,  evidence  of  his  citizenship  was  called  for,  when  it  appeared  that 
his  father  brought  him  into  this  country  in  the  year  1784,  and  remained 
here  until  1702.  when  the  father  died.  Neither  he  nor  his  father  were 
naturalized,  and  the  vessel  was  condemned.  These  instances  show  the 
danger  of  crediting  such  custom-house  certificates. 

All  these  certificates,  in  the  present  case,  do  not  form  the  best  evi- 
dence, because  better  is  still  in  the  possession  of  the  party,  and  he 
ought  to  produce  it.  The  general  and  fundamental  rules  of  evidence 
are  the  same  in  courts  of  admiralty,  as  in  courts  of  common  law.  If 
they  appear  to  relax,  it  is  only  in  that  stage  of  the  business  where  they 
are  obliged  to  act  upon  suspicion.    In  the  present  case,  the  opinion  of 


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176 


JUDGMENTS  OF  THE  SUPREME  COURT 


merchants  only  is  taken  as  to  the  laws  of  Denmark.  No  judicial  char- 
acter, not  even  a  lawyer,  was  applied  to.  Certificates  of  merchants  are 
no  evidence  of  the  law.  The  Santa  Cms,  1  Rob.  58.  The  evidence 
offered  is  both  ex  parte  and  ex  post  facto.  Fraud  is  not  to  be  pre- 
sumed, but  why  was  not  the  burgher's  brief  produced,  as  well  as  the 
other  papers,  such  as  the  oath  of  property,  etc.,  when  it  was  certainly 
the  most  important  paper  in  the  case?  The  only  reason  which  can  be 
given  is  that  it  did  not  exist.  It  was  a  case  like  that  of  Captain  White- 
sides,  where  people  were  led  into  a  mistake  from  the  length  of  his 
residence,  and  from  having  seen  him  there  from  the  time  of  his  youth. 

Upon  the  whole,  then,  we  have  a  right  to  conclude  that  Jared  Shat- 
tuck  was  not  a  Danish  subject ;  or  that  if  he  was,  the  fact  is  not  proved, 
and  therefore  he  remains  a  citizen  of  the  United  States,  in  the  words 
of  the  act  of  Congress,  "residing  elsewhere."  The  consequence  must 
be  a  condemnation  of  the  vessel. 

II.  She  was  in  danger  of  condemnation  in  the  French  courts  of 
admiralty,  and  therefore  Captain  Murray  is  entitled  to  salvage.  This 
depends:  1.  On  the  right  to  retake;  2.  On  the  degree  of  danger;  and 
3.  The  service  rendered. 

1.  He  had  a  right  to  retake,  on  the  ground  of  suspicion  of  illicit 
trade,  in  violation  of  the  non-intercourse  law,  as  well  as  on  the  ground 
of  her  being  a  vessel  sailing  under  French  authority,  and  so  armed  as  to 
be  able  to  annoy  unarmed  American  vessels.  He  had  also  a  right  to 
bri.  ^  her  in  for  salvage,  if  a  service  was  rendered.  If  his  right  to 
retake  depends  upon  the  suspicion  of  illicit  trade,  or  upon  her  being  a 
French  t.med  vessel,  he  could  take  her  only  into  a  port  of  the  United 
States. 

The  point  of  illicit  trade  has  already  been  discussed.  That  the  vessel 
was  sailing  under  French  authority  is  certain;  the  only  question  is. 
whether  she  was  capable  of  annoying  our  commerce.  She  had  pnrt- 
holes,  a  musket,  powder  and  balls,  and  eight  Frenchmen,  who,  probably. 
as  is  usual,  had  each  a  cutla^=  Vessels  have  been  captured,  without  a 
single  mu.sket;  three  or  fom  cutlasses  are  often  found  sufficient.  Tlic 
vessel  was  sufficiently  armed  to  justify  Captain  Murray,  under  hi- 
instructions,  in  bringing  her  in. 

If,  then,  the  taking  wps  lawful,  has  she  been  saved  from  such  danpcr 
as  to  entitle  Captain  Murray  to  salvage?  There  is  evidence  that  Cap- 
tain Wright  requested  Captain  Murray  to  take  the  vessel,  to  prevent 
her  falling  into  the  hands  of  the  Engli.sh.    He  consented  to  be  carriid 


MURRAY  V.  SCHOONER  CHARMING  BETSY  177 

into  Martinique.  He  protested  only  against  the  privateer,  not  against 
Captain  Murray.  H,s  letter  to  Captain  Murray  does  not  complain  of 
he  recapture,  but  of  the  detention.  The  taking  was  an  act  of  human- 
ity, for  ,f  Captani  Murray  had  taken  out  the  Frenchmen,  and  left  the 
vessel  with  only  Captain  Wright  and  the  boy,  they  could  not  have 
navigated  her  into  port,  and  she  must  have  been  lost  at  sea,  or  fallen 
a  prey  to  the  brigands  of  the  islands.  This  alone  was  a  service  which 
ought  to  be  rewarded  with  salvage. 
But  she  was  in  danger  of  condemnation  in  the  French  courts  of 

!dl?H  K    ^     w'^c  °^  ^'"^'"  ^-  ^'''^''  ^^'  ^"""^""^^  the  principle 
adop  ed  by  Sir  W.  Scott,  in  the  case  of  The  War  Onskan.  2  Rob.  246. 

that  the  departure  of  France  from  the  general  principles  of  the  law  of 
nations,  varied  the  rule  that  salvage  is  not  due  for  the  recapture  of 
a  neutral  out  of  the  hands  of  her  friend;  and  that  the  general  conduct 
of  France  was  such  as  to  render  the  recapture  of  a  neutral  out  of  her 
hands,  an  essential  service,  which  would  entitle  the  recaptors  to  sal- 
vage. If  she  had  been  carried  into  a  French  port,  how  unequal  would 
have  been  the  conflict?  Who  would  have  been  believed,  the  privateer 
or  the  claimant?  The  Danish  papers  would  have  been  considered  onlv 
as  u  cover  for  American  property.  The  danger  is  shown  by  the  appre- 
hensions of  Captain  Wright  and  his  crew;  by  the  declarations  of  the 
privateer;  by  th-  proccs  verbal;  and  by  the  actual  imprisonment  of  the 
crew. 

But,  independent  of  the  general  misconduct  of  France,  there  are 
several  French  ordinances  under  which  she  might  have  been  con- 
demned. The  case  of  Pollard  v.  Bell,  8  T.  R.  444,  shows  that  such 
ordinances  may  justify  the  condemnation.  The  case  of  Bcrmrdi  v 
Motteujr,  2  Doug.  575.  =.lmws  that  the  French  courts  actually  do  pro- 
ceed to  condemnation  ujwn  them,  as  in  the  case  of  throwing  over 
papers,  etc.  So.  in  the  case  of  May»e  v.  IValter.  Park  on  Insurance, 
414  (363),  the  condemnation  was  because  the  vessel  had  an  English 
supercargo  on  board. 

By  the  ordinances  of  France.  Code  des  Prises,  vol.  1,  p.  306.  §  9, 
"all  foreign  vessels  shall  be  good  prize  in  which  there  shall  be  a  super- 
cargo, commissary  or  chief  officer  of  an  enemy's  country;  nr  the  crew 
of  which  shall  be  composed  of  one-third  sailors  of  an  cnt-my's  state ; 
cr  which  shall  not  have  on  hoard  the  tMcm  d'cquipaqe  certified  by  the 
public  officers  (,f  the  neutral  places  froni  whence  the  vessels  shall 
have  sailed."     .\nd  by  another  ordinance.  1   Code  des  Prises,  303,  § 


i;^ 


JUDGMENTS  OF  THE  SUPREME  COURT 


6,  "No  regard  is  to  be  paid  to  the  passports  granted  by  neutral  or 
allied  powers,  to  the  owners  or  masters  of  vessels,  subjects  of  the 
enemy,  if  they  have  not  been  naturalized,  or  if  they  shall  have  not 
transferred  their  domicil  to  the  states  of  the  said  powers,  three  months 
before  the  1st  of  September,  in  the  present  year;  nor  shall  the  said 
owners  or  masters  of  vessels,  subjects  of  the  enemy,  who  shall  have 
obtained  such  letters  of  naturalization,  enjoy  their  efJect,  if,  after  they 
shall  have  obtained  them,  they  shall  return  to  the  states  of  the  enemy, 
for  the  purpose  of  their  continuing  their  commerce;"  and  by  the  next 
article,  "vessels,  enemy  built,  or  which  sh-11  have  been  owned  by  an 
enemy,  shall  not  be  reputed  neutral  or  allied,  if  there  are  not  found 
on  board  authentic  documents,  executed  before  public  officers,  who  can 
certify  their  date,  and  prove  that  the  sale  or  transfer  thereof  had  been 
made  to  some  of  tfte  subjects  of  an  allied  or  neutral  power,  before  the 
commencement  of  hostilities ;  and  if  the  said  deed  or  transfer  of  the 
property  of  an  enemy  to  the  subject  of  the  neutral  or  ally,  shall  not 
have  been  duly  enregistercd  before  the  principal  officer  of  the  place  of 
departure,  and  signed  by  the  owner,  or  the  person  by  him  authorized." 
In  violation  of  these  ordinances,  the  chief  officer.  Captain  Wright, 
was  a  Scot,  an  enemy  to  France:  for  although  he  hid  a  burghers 
brief,  yet  it  did  not  appear,  that  he  had  resided  three   nonths  before 
he  obtained  it ;  and  we  have  before  seen,  that  a  previous  residence  was 
not  necessary,  by  the  laws  of  Denmark,  to  entitle  him  to  a  burghers 
brief,  for  the  purpose  of  being  master  of  a  vessel.    In  the  next  place. 
the  whole  number  of  the  crew,  with  the  master,  being  eleven,  an.l 
three  of  the  crew  being  Americans  and  the  master  a  Scot,  more  than 
one-third  of  the  crew  were  enemies  of  France.     The  muster-roll  did 
not  describe  the  place  of  nativity  of  the  crew.    The  vessel  was  pur- 
chased after  the  commencement  of  hostilities  between  France  and  the 
United  States.    And  there  was  no  authority  on  board  from  the  .Amer- 
ican owners  to  Phillips,  the  agent  who  made  the  sale,  in  violation  .t 
the  regulation  of  17th  February,  1794,  art.  4  (2  Code  des  Prises,  p. 
14).  which  declares  "the  vessel  to  be  good  prize,  if  being  enemv  built. 
or  belonging  originally  to  the  enemy,  the  neutral,  the  allied,  or  the 
French  proprietor,  shall  not  be  able  to  show,  by  authentic  documents 
found  on  board,  that  he  had  acquired  his  r  (rht  to  her  before  the  derlnr- 
ation  of  war."    See  also  2  Valin,  249.  §  9;  251.  §  12.  and  244. 

What  chance  of  escape  had  this  ves.scl,  under  all  these  ordinance^ 
which  the  French  courts  were  bound  to  enforce?    The  case  of  PcIUkj 


MURRAY  V.  SCHOONER  CHARMING  BETSY  179 

niS'  IIa  ?/^f'u'  P''"''''^  '"  P°'"'-    '^^^  ^^"^1  i"  that  case  was 
fh.  f;/"   H         i  '•''  fP'"  "^"^">'  ""'^^  by  Danish  vessels.    But 
she  was  condemned  .n  the  highest  court  of  appeal  in  France,  because 
the  master  was  a  Scot,  who  had  obtained  a  Danish  burghe  's  brief 
subsequent  to  the  hostilities.     Has  there,  then,  been  no  Service  ren- 

It  is  no  objection  to  the  claim  of  salvage,  that  it  is  not  made  in  the 
hbel.  Salvage  is  a  condemnation  of  part  of  the  thing  saved.  The 
prayer  for  condemnation  of  the  whole  includes  the  part:  it  may  be 
made  by  petition,  or  even  ore  tenus.  ^ 

rltTT  "''"*  ^7  ''"'"^  "^^  "°'  ^'  "^*^d  »vith  that  sole  view. 
Talbot  ^•Seeman  As  to  the  guantum  of  salvage,  he  referred  to  the 
op.mon  of  S.r  W.  Scott,  in  the  case  of  The  Sarah.  1  RcS.  263 

fhlt  V  ^'"  ^f""""^  ^'*'y  i^  "ot  'iable  to  condemnation,  under 
the  non-mtercourse  law,  and  if  Captain  Murray  is  not  entitled  to  sal- 
vage, yet  the  rest.tut.on  ought  to  be  made  of  the  net  proceeds  of  the 
sale  only,  and  not  w.th  damages  and  costs 

In  maritime  cases,  probable  cause  is  always  a  justification.  The 
grounds  of  susp.c.on,  in  the  present  instance,  have  been  already  men- 
Uoned;  and  when  to  these  are  added  the  circumstances,  that  it  was  at 
Captain  Wrights  request  that  Captain  Murray  took  possession  of  the 
vessel;  that  he  consented  to  be  carried  into  Martinique ;  that  if  he  had 
taken  out  rhe  Frenchmen,  and  left  the  vessel  in  the  m.dst  of  the  ocean. 
w.th  only  Capta.n  Wnght  and  his  boy.  the>-  would  have  been  left  to 

perishable;  and  that  Capta,n  Murray  offered  to  release  the  vessel  and 
cargo,  on  secunty.  there  can  hardly  be  a  stronger  case  to  save  him 
trom  a  decree  for  damages. 

In  the  case  of  the  Two  Susannahs.  2  Rob.  1 10.  it  is.  by  Sir  W  Scott 
taken  as  a  principle,  that  a  seizure  is  justified  bv  an  order  for  further 
proof,  and  he  decreed  a  restitution  of  the  proceeds  onlv.  it  not  heine 
shown  that  the  captorr  conducted  themselves  othenvise  than  with  fair 
.ntent.ons.  In  the  present  case,  there  is  no  preten.^e  that  Cnpt-iin  Vm- 
ray  did  not  act  from  the  purest  motives  and  from  a  wish  faithfnlh- 
to  execute  h.s  instructions. 

Key,  contra.-!.  The  schooner  CharminQ  Betsv  and  her  cargo 
were  neutral  property,  and  not  liable  to  capture  under  the  non-inter- 
course law.    2.  When  recaptured,  she  was  not  an  armed  French  ves- 


y    1 


180 


JUDGMENTS  OF  THE  SUPREME  COURT 


^  I 


sel  capable  of  annoying  our  commerce,  and  therefore  not  liable  under 
the  acts  of  Congress  authorizing  the  capture  of  such  vessels.  3.  She 
was  not  in  imminent  danger  when  recaptured,  and  therefore  Captain 
Murray  is  not  entitled  to  salvage.  4.  Under  all  the  circumstances  of 
the  case,  he  acted  illegally,  and  is  liable  for  damages  which  have  been 
properly  assessed. 

I.  As  to  the  neutral  character  of  the  vessel  and  cargo,  he  contended : 
1.  That  Jared  Shattuck  never  was  an  American  citizen.  2.  That  if  he 
was.  he  had  expatriated  himself,  and  had  become  a  Danish  subject. 
3.  That  if  not  a  Danish  subject,  yet  he  was  not  a  citizen  of  the  United 
States. 

1.  The  evidence  is  that  he  was  bom  in  Connecticut,  but  before  the 
Declaration  of  Independence,  and  was,  tht.efore,  a  natural-bom  subject 
of  Great  Britain.  He  was  in  trade  for  himself,  in  St.  Thomas,  in  1794. 
This  he  could  not  do  until  he  was  twenty-one  years  of  age,  which  will 
carry  back  the  date  of  his  birth  to  the  year  1773.  He  was  an  apprentice 
at  St.  Thomas  in  the  year  1788  or  1789.  There  is  no  evidence  of  his 
being  in  the  United  States  since  the  Declaration  of  Independence.  But 
if  he  had  been,  yet  he  went  away  while  a  minor,  and  he  could  not 
make  his  election  during  his  minority.  There  is  no  evidence  that  his 
parents  were  citizens  of  the  United  States.  Being  a  natural-bom  sub- 
ject of  Great  Britain,  he  could  not  become  a  citizen  of  the  United 
States,  unless  he  was  here  at  the  time  of  the  revolution,  or  his  parents 
were  citizens,  or  unless  he  became  naturalized  according  to  law.  It  is 
incumbent  upon  Captain  Murray  to  prove  him  to  be  a  citizen  of  tlic 
United  States.  It  is  sufficient  for  us  to  show  that  he  was  born  a  sub- 
ject of  Great  Britain.  They  must  show  how  he  became  a  citizen.  This 
is  a  highly  penal  law,  and  everj-thing  must  be  proved  which  is  neces- 
sary to  bring  the  case  within  the  penalty. 

2.  But  if  he  ever  was  a  citizen  of  the  United  States,  he  had  expatri- 
ated himself.  That  ever>-  man  has  a  right  to  expatriate  himself,  is 
admitted  by  all  the  writers  upon  general  law;  and  it  is  a  principle 
peculiarly  congenial  to  those  upon  which  our  constitutions  are  founded. 
Some  of  the  States  of  the  Union  have  expressly  recognized  the  ripht. 
and  even  prescribed  the  form  of  expatriation.  But  where  the  form  is 
not  prescribed,  nothing  more  is  necessary  than  that  it  be  accompanied 
with  fairness  of  intention,  fitness  of  time,  and  publicity  of  election. 

In  the  present  instance,  all  thef  circumstances  concur.  \o  time 
could  have  been  more  fit  than  the  year  1788  or  1789,  when  all  Europe 


MURRAY  V.  SCHOONER  CHARMING  BETSY  igl 

and  .\merica  were  in  a  state  of  profound  peace.  His  country  had  then 
no  claim  to  h,s  service.  The  fairness  of  intention  is  evidenced  by  its 
having  been  carried  into  effect  by  an  actual  bona  fide  residence  of  ten 
or  eleven  years;  by  serving  an  apprenticeship;  by  actual  domiciliation; 
by  marriage;  by  becommg  a  burgher;  by  acquiring  lands,  and  bv  own- 
ing ships.  The  publicity  of  election  is  witnessed  by  the  same  acts,  and 
by  taking  the  oath  of  allegiance  to  Denmark.  The  United  States  have 
prescribed  no  form  of  expatriation.  All  that  he  could  do  to  render  the 
act  public  and  notorious  has  been  done. 

It  is  said  a  man  can  not  cease  to  be  a  citizen  of  one  state,  until  he 
has  become  a  citizen  or  subject  of  another.  But  a  man  mav  become  a 
citizen  of  the  worid ;  an  alien  to  all  the  governments  on  earth  »  It  is 
in  evidence  that  by  the  laws  of  Denmark  a  man  can  not  become  a  sub- 
ject and  carry  on  trade  without  being  naturalizea;  that  an  oath  of 
allegiance  and  an  actual  domicil  are  necessarj-  to  naturalization  •  but 
that  a  domicil  is  not  necessary  to  become  a  burgher,  for  the  purpose 
of  navigatmg  a  Danish  vessel. 

In  the  two  cases  cited  from  1  Rob.  133  (The  Argo),  and  8  T  R 
434  (Pollard  v.  Bell),  the  question  was  only  as  to  the  national  char- 
acter of  the  master  of  the  vessel,  not  of  the  owner ;  and  therefore  thev 
do  not  apply  to  the  present  case. 

The  burgher's  brief  of  Captain  Wright  is  dated  19th  May  1794  and 
certifies  that  he  had  taken  the  oath  of  fidelitj-  to  his  Danish  majestv 
and  was  entitled  to  all  the  privileges  of  a  subject. 

3.  But  if  the  facts  stated  in  the  record  are  not  sufficient  to  prove 
Shattuck  to  be  a  Danish  subject,  yet  thev  do  not  prove  him  to  he  a 
citizen  of  the  United  States,  and  if  he  is  not  a  citizen  of  the  United 
States,  It  IS  immaterial  of  what  countrv  he  is  a  subject  By  the  law 
of  nature  and  nations,  a  man  may.  by  a  bona  Me  domicil. 'and  Ion- 
continued  residence  in  a  country,  acquire  the  character  of  a  neutraF 
or  even  of  an  enemy.  In  the  case  of  Scot  v,  Sdiaii-rtz.  Comvns  677 
It  was  decided  that  residence  in  and  sailing  from  Russii  ^ave  the 
manners  of  a  Russian  ship  the  character  of  Russian  mariners,  within 
the  meaning  of  the  British  navigation  act :  and  in  the  case  of  The  Har- 
wionv.  2  Rob.  264.  Sir  W.  Scott  condemned  the  poods  of  an  American 
citizen,  because,  by  a  residence  in  France,  for  four  years,  he  had 

rw/  J""^"^*"  =»"  ^  no  doubt  of  that. 
,.Ji-         ""^  *"*  ^"'^  •"'"  misunderstood.     He  onlv  said  that  the  act  of  h*- 


m 


182 


JUDGMENTS  OF  THE  SUPREME  COURT 


acquired  a  domicil  in  that  country  which  had  given  his  property  the 
character  of  the  goods  of  an  enemy.  In  the  case  of  IVilson  v.  Marryat. 
8  T.  R.  31,  it  was  adjudged  that  a  natural-born  British  subject  might 
acquire  the  character  of  a  citizen  of  the  United  States  for  commercial 
purposes. 

II.  The  Charming  Betsy  was  not  a  French  armed  vessel,  capable  of 
annoying  our  commerce,  and  therefore  not  liable  to  capture  or  con- 
demnation, by  virtue  of  the  limited  war  which  existed  between  the 
United  States  and  France.  In  supporting  this  proposition,  it  is  not 
mtended  to  interfere  with  the  decision  of  this  court  in  the  case  of 
Talbot  V.  Seeman.  There  is  a  great  difference  between  the  force  of 
the  Attwlia  in  that  case,  and  that  of  The  Charming  Betsy.  The 
Amelia  had  eight  cannon,  was  manned  by  twelve  Frenchmen,  and  had 
been  in  possession  of  the  French  ten  days,  and  must  be  admitted  to 
have  been  such  an  armed  French  vessel  as  came  within  the  meaning 
of  the  acts  of  Congress. 

But  in  the  present  case,  the  vessel  was  built  at  Baltimore,  and  owned 
by  citizens  of  the  United  States.     When  she  sailed  from  Baltimore, 
she  had  four  cannon,  a  number  of  muskets,  etc.,  which  Shattuck  wa< 
obliged  to  purchase  with  the  vessel,  and  which  he  afterwards  sold  at 
a  considerable  loss.    The  master  swears,  that  at  the  time  of  recapture, 
she  had  only  one  musket,  a  few  balls  and  twelve  ounces  of  powder ;  an! 
although  McFarlan  deposes  to  a  greater  quantity  of  arms,  yet  it  ap- 
pears that  he  did  not  go  on  board  of  her  until  eight  days  after  the  re- 
capture.   If  arms  were  on  board,  they  ought  to  have  been  brought  in 
with  the  vessel :  this  is  particularly  required  by  the  act  of  Congress. 
No  arms  are  mentioned  in  the  account  of  sales":  it  is  to  be  presumed 
as  none  were  brought  in,  that  none  were  on  board.     The  master  ex- 
pressly swears  that  the  French  put  no  force  or  arms  on  board,  when 
they  took  her.     She  could  not.  therefore,  be  such  an  armed  vessel  a~ 
was  intended  by  the  acts  of  Congress. 

III.  She  was  not  in  imminent  danger  when  recaptured,  and  there- 
fore the  recaptors  are  not  entitled  to  salvage.  It  is  a  general  prin- 
ciple that  the  recapture  of  a  neutral  does  not  entitle  to  salvage. 

It  is  not  intended  to  question  the  correctness  of  the  decision  of  thi^ 
court  in  the  case  of  Talbot  v.  Seeinan.  nor  that  of  Sir  W.  Scott  in  the 
case  of  The  War  Onskan.  those  cases  were  exceptions  to  the  pen- 
era!  rule,  because  the  conduct  of  France  was  in  violation  of  the  Inw 
of  nations,  and  because  neutral  %  -  's  had  no  chance  of  escaping  the 
rapacity  of  the  French  prize  courts.    This  system  of  depredation  upon 


MURRAY  V.  SCHOONER  CHARMING  BETSY  133 

neutral  commerce  continued  during  the  years  1798  and  1799     The 

tTi'^rrV^^uT'^  ^'  '^'P'''"  '^''^'-  '"  September.  1799,'  while 
IaZ  -1  ^^'^Jf'"^^''  1798.  so  injurious  to  neutral  commerce, 
and  the  violences  of  the  prize  courts,  were  in  full  operation  - 

of  July,  1800  Durmg  th.s  mterval,  great  events  had  occurred  in 
France^  On  the  9th  of  November.  1799.  Bonaparte  was  placed  at  th^ 
1  9^1  .'  ^°^'T'"''  """^  "  ""*  °^^"  °^  things  commenced.  On 
Of'the  iVh  T  '"'"^iJ'''J'^  ""''  °'  '""^  ^°"-''  -  -e  hundred! 
Hen  nH  ^'""T'  ^^'  *^''''  '""^^  ^''^  ^^aracter  of  neutral  vessel 
dependent  upon  the  qual.ty  of  the  cargo,  and  declared  good  prize  all 
those  laden  m  whole  or  m  part  with  the  productions  of  England  or 

\m^ZT"l'J":  7"^:"'  '"'  '^  '  "^"  ^^"-'  the  ordinance  of 
^H  iL  '^^f^^''^'^-  /he  government  adopted  a  more  enlightened 
and  liberal  policy  towards  neutrals.  On  the  26th  of  March  1800  a 
new  tribunal  of  prizes  was  erected,  at  the  head  of  which  was  placed  the 
elebrated  Portal.s.  author  of  the  Civil  Code.  On  the  29th  of  May 
1800,  their  pnncples  were  tested  in  the  case  of  The  Pegou,  an  Ame.4- 
can  sh.p  belonging  to  Philadelphia.  This  case  was  a  puWic  declaration 
to  all  the  world,  that  they  began  to  entertai,.  a  proper  respect  for  the 

in  the  case  of  The  War  Onskan,  ceased. 

The  Pegou  had  been  condemned  in  an  inferior  tribunal.    On  an  a:>- 
peal  to  the  council  of  prizes.  Portalis,  with  a  degree  of  liberality  and 
correctness  which  would  confer  honor  upon  any  court  in  the  world 
declared  that    excepting  the  case  when  a  prize  is  evidently  and  actually 
enemy  s  property,  all  questions  about  the  validity  or  invalidity  of 
pnzes.  come  to  the  examination  of  a  fact  of  neutrality."    And  in' dis- 
cussing the  question  as  to  the  necessity  of  a  role  d'equipage  he  says  "I 
wU  begin  with  the  principle,  that  all  questions  about  neutrality  are  what 
are  called  in  law.  questions  bona  fide,  in  which  due  regard  is  to  be  had 
to  facts  which  are  tc  be  properly  weighed,  without  adhering  to  trifline 
appearances."     '"But  it  would  be  a  gros.  error,  in  believing  that  the 
«ant  of,  or  the  least  ir.egularity  in.  one  of  these  papers,  could  operate 
so  far  as  to  cause  the  vessel  to  be  adjudjjed  good  prize.     Sometimes 
regular  papers  cover  an  enemy's  property,  which  other  circumstances 
unmask.      In   other   circumstances,    the    stamps   of   neutrality    break 
through  omissions  and  irregularities  in  the  forms,  proceeding  from 
mere  negligence,  or  grounded  on  motives  free  from  fraud 
"We  must  speak  to  the  point:  and  in  these  matters,  as  well  as  in 


184 


JUDGMENTS  OF  THE  SUPREME  COURT 


those  wliich  are  to  be  detcrniineii,  we  must  decide  not  by  mere  strict 
forms,  but  by  the  principles  of  good  faitli ;  we  must  say,  with  the  law. 
that  mere  omissions  or  mere  irregularities  in  the  forms,  can  not  preju- 
dice the  tnith,  if  it  is  stated  by  any  other  ways:  and  si  aliquid  ex 
solcmnibus  dcfidal.  cum  -ijuitas  posc.t,  subveniendum  est."  "The  main 
point  in  every  case  is  that  the  judge  may  be  satisfied  that  the  property 
is  neutral  or  not."  He  then  cited  a  case  decided  upon  the  6th  article 
of  the  regulation  of  the  21st  of  October,  1744,  by  which  article  the 
act  of  throwing  over  papers  is  made  a  substantive  ground  of  condem- 
nation. But  it  was  decided  that  the  papers  ought  to  be  of  such  a 
nature  as  to  prove  the  property  to  be  enemy's. 

The  two  grounds  upon  which  The  Pegou  was  condemned  in  the  'n- 
ferior  tribunal  were  that  she  was  armed  for  war,  without  any  com- 
mission or  authority  from  the  I'nited  States,  and  that  there  was  on 
board  no  role  dcquifa^^e.  attested  by  the  public  officers  of  the  port  of 
departure.  She  mounted  ten  guns,  and  was  provided  with  mu.skt  s  and 
other  warlike  stores.  I'pon  the  first  point,  it  was  decided  in  the  council 
of  prizes  that  she  was  not  armed  for  war,  but  for  law  ful  defense :  ^nd 
on  the  second,  that  a  role  d'equipage  was  not  absolutely  necessan,-,  if 
the  property  appeared  otherwise  clearly  to  be  neutral.' 

tranThtinn' n^.rT  n  '■^^■'?"'  ^"'^'""^  *"''  ^°^  '^""'  aPP^-arinS  through  a  had 
translation  of  proti.ihly.  not  a  very  acairate  account  of  this  case,  that  it  i<  w-th 

publirprintT"  '''  "  *"'""  P"^y^^^o<\  in  this  country  from  the  Londor: 

Opinion  of  P„RTAMS.-.\fter  having  road  the  opinion  of  commissioner^  f 
the  povernment.  !elt  m  writing  on  tlie  taWc,  which  is  as  follows  • 

It  appears  that  a  judgment  of  the  tribunal  of  commerce  at  I'Orient  ■  v' 
granted  Ciptan,  (,r,-.|,  the  replevy  of  hi.  vessel  and  part  of  the  g<x>d^  ad 
specie  which  composed  the  cargo;  and  that  on  the  appeal  entered  by  the  cor--.- 
troller  ot  marine  at  I  Orient  against  that  judgment,  the  tribunal  of  tlie  denar:- 
meiit  of  Morbihan  declared  the  vessel  and  cargo  a  good  prize 

n,  »  .u^"'"""'^',  ""  '''''"'''  7'J*"'*  *'"^  decision  of  the  tribunal  of  Morbihan  wer- 
that  the  vessel  was  armed   for  war   without  any  commission  or  authorizat-  - 

L""".  ^''v-  T"''^..^""'^^""'*"'-  ^'"^  ^''^f  "'"e  was  on  board  no  role  d\-nu<fj-- 
attested  by  the  public  officers  of  the  port  of  his  departure  '^    •    -■ 

The  captured  claim  the  nullity  of  the  prize,  and  that  the  vessel  be  reinna-e  ' 
m  the  situation  she  was  in  when  captured,  and  that  she  be  delivered  up  as  uf-; 
as  her  cargo,  and  the  dollars  which  were  on  board,  and  also  the  paper«'  w-- 

damages  and  interest  adequate  to  the  losses  they  had  sustained  

,u  ^j**''*  '°  determine  on  the  respective  demands,  we  must  first  fix  w^  - 
the  validity  or  invalidm-  of  the  prize,  excepting  the  case  when  a  prize  i*  c,  - 
dently  and  actually  enemy  s  property,  all  questions  about  the  validity  or  - - 
validity  of  prizes  come  to  the  examination  of  a  fact  of  neutrality' 

In  thi=  ca'e,  was  the  tribunal  of  Morbihan  authorized  to  determine  that  '-' 
ship  Pegnu  was  in  such  circumstances  as  to  be  prevented  from  being  ackr;..,^^ 
edged  and  respected  as  neutral? 

It  is  said  the  vessel  was  armed  for  war,  and  without  any  authorization  frorr. 


ML-RR.^Y  ».  SCHOONER  CHARMING  BET5V  ,<,; 

1.  Whether  The  Statira  bein-  an  Am  P^'^^'' ^^^^  quen.ons  arose: 

;-h  -h.r.       J        -"unra,  oeing  an  Amenc-m  vesse!  caoturel  bv  a  P-ir 
ish  =hip.  and  recaptured  bv  a  French  privateer   u  =  -  ■•  m        '       - 
Kon  on  the  ^ound  of  h-r  bein.  ,n  .^1  ''^^''  '''  ^'""^-"^^- 

..t.nt,  ner  car?.,  ^va.  ^ound  ot  condemnation - 

.^  r-.t  ror  havir?  irms  on  t^a.-d  " Iv  that  f  v, -^^r '  "iL '">'•  ?=^'^  '  '^'"^  *' 
r.r  war  Tht  warlike  annamert  is  n^erelv  of  an  off'  ^^  '^  '^'^  "^  »>«  armed 
v>  when  there  i.  no  ether  end  tha^  Ittirt,l»  °*^'^"-«  "^ture;  it  is  deemed 
.ho,;,  that  atuck  U  the  mai^^int  of  J,/  ';^'  °'  ?'  '"^'  *^«'  «ver>-  thmg 
ir.mical.  or  pirate  if  she  has  rV  rnr^r- -^  armament:  then  a  vessel  is  re'tuted 
.-p:ci.n.  But  defer.s;  il  ornrt^ral'-'ghV'alld've'rT"  *'"^  T^'  «---«'" 
■n  vo>-ages  at  sea.  as  :n  erer.-  other  daneerf^    ^^.V      ^'  f  defense  is  lawful 

A  vessel  consisting  of  but  "a  small  c^ew^n^     ^^-^^  °'  '"*■ 
t:-  a  considerable  .urn.  *a"  ef-idS:"  •  fnt^.t"/,- *'';^^<=='^^^  '"  ?*.>i^  amounted 
ir-:5  round  on  t>_ard   were  not  t     c^^^i.  „t     5  trade^  and  not  for  war.    The 
th.em:  not  for  attack,  but  fo^  de  e"^^^'^i"^''"  *'"'^-  '''"""'>••  >>"'  to  avoid 
my  opinion,  can  not  be  founded  pretense  ot  armament  for  war.  in 

.am  now  to  difctiss  the  second  argument  a?-      ^  ff,. 
a  r  .V  d'fquxp<ig,.  ane-ted  bv  the  pubhc  officer         ;.  "'^.'^P'o"  on  the  want  of 

To  support  uhe  val:d:t^-  of  the   "r  ze    t^ev  .     J   ,^F^^"  ^^  ^"  departure 

Oeober.  1774.  cf  the  26th  of  I,  il  'l4s      7  t  1^  ^^  regulation  of  the  21. t 

I-".n  Ventose.  5th  vear   wh^V,^:.;  I'l'  ^'^^.  ^:'  '^'"'^  of  the  directory-  of  the 

^  The  captured,  on  the.r  paT^    c?a,m  t-e  ex,.  f''"''''^-'\ 

\«*een  France  a..^  th.  United  late  "of  A^""   ' '-  '*;.'  '"^'^^  °'  commerce. 

th.y  contend  f.at  general  ret^at;r?o-!A'",V',"^-  ^'  '""  '''^-  F'-'^niary.  177,? 

ar.d  that  the  direct-r^-  could  -otrfrn^e.^,       -^"cerate  tr^.m  a  special  treatv. 

^.:t  =^  a   fact  that  the  re^.ia~t.l,n/';7l44  ^'\-^  ^  ^'^^7  ^««^- 
d:rf-t^rv  reo-j---  a   ,•■.   v"  ana    I//*,   ard    the    iecrp-   r.i   .i. . 

■      •  ^^  '  :-:•  y^f!:':^::.^!^^"^!^  ^y^J^^  puM:c  o^ce^. '^'he  ^il^:; 


-  m  t'- 
trali- 


::ea;;:f-^he6t^;  Fe^^X  T-!^^^^/'-'  '''^"'^--^   "  -..  menti, 
'-t  I  believe  I  am  not^d^    the  nLe;!,^''7%[^""=**  to  e-t.--^ 

;i^or  to  the  regulations,  or  wh::^v;^he'  ;^;:;^:;^:i  1^'::.    ,  . 

a.e^lid'ifll^te!;^-^'-^^^"  ^"  "^fT-   ^^-^  -^'"htv.  a-e    .. 
w^  c"-  a-P  -^  w^  .  m-c-n.^ns  r   nj  pdc.  m  wnich  due  reca-r'  i-  to  y.^  <     :  ■     ■ 

NVu^alit^:  iV^t^^^,:::^^^^  *'^-'  ^^f^-n.  t^trifllne  ap^ea;,.:  , 
artcle  9.  or  prizes    caterL,'''  '^V  """V'"-  '^«  '•e<--'!ati-     f  ^^^i-e  ■.• 

-  ^.aH  chi;^  pS-  n-  :;Vh^.;y'^:^ii..^^':r\^'/-^  ^^aifn.; 

po,-d  pnze  la^.ng.   ..,.,r  ...\,;ce-.   sha;.   he  consider- 

neural,  hy  passport^,  b.lls  ^td^g  ^nvo^'"^  ^l.^!,  ^"^'^   P^°P"»^    ^' 
The   regu  auon   of    1774    wK-,..         •^>oi.e?  a...  \e5^elf    pape/s, 

'%;^'J^^^y<^^Tr-T^^]^^:,.;:Y-r^  to  prove  neutrafprop 

ularity'in"one  of^hefc'Mner''s'"'r^i^H"^'^"*  '^^'  ■'"■^  *^-"'  ■"'■  or  the  least  irr^-e 
adjudged  good  prize      ^^      '  """'^  "^'^'^  -  '^'  a=  to  cause  the  vessel  to  h- 


186 


JUDGMENTS  OF  THE  SUPREME  COURT 


On  the  first  point,  it  was  held  that  the  mere  capture  does  not,  before 
condemnation,  vest  the  property  in  the  captor,  so  as  to  make  it  trans- 
ferable to  the  recaptor,  and  therefore  no  ground  of  confiscation.  On 
the  2d,  there  were  two  inquiries:  1.  Whether,  in  point  of  law,  the 
character  of  the  vessel,  neutral  or  not,  should  be  determined  by  the 
nature  of  the  cargo?    2.  Whether  the  cargo  consisted  of  contraband  ? 

•t^c«'uirma<L'^l'"  .^''"*  """  "'  '"u""y'»  P'°P"«y-  which  other  circum- 
•tonces  unmask     I.,  other  circumstances  the  stamps  of  neutrality  break  through 

T^ulT^  •"'*  •7"^'""""  '"  «he  forms,  pnKeeding  from  mc%  ..egligence,  or 
groundec:  on  motives  free  from  fraud.  »';■".=.  "■ 

^r^L"Z"AT'^-^°J^'  '^'"*-  "".^  i"  *•""  •"»""»  "  *ell  as  in  those  which 
pnnaples  of  good  fa.th;  we  must  say  w.th  the  law,  that  mere  omissions,  or 
mere  irregularities  in  the  forms,  can  not  prejudice  the  truth,  if  it  is  sUted  bv 
iny  other  ways:  .nd  i,  atxqutd  ex  solemmbus  dfficiat.  cum  equilas  poscit,  suf- 

fhV'ti;'*''"-  ?"'  reflation  of  the  26th  July,  1778,  art.  2.  after  having  stat^i 
that  the  masters  of  neutral  vessels  shall  prove  at  sea  their  property  being 
neutral,  hy  passports  bills  of  lading,  invoices  and  other  vessel  papers  ada< 
one  of  which  at  least  .hall  establish  the  property  being  neutral,  or  shall  contair 
an  exact  description  of  if. 

It  is  not  then  necessary  in  every  case  to  prove  the  property  neutral  bv  f^- 
$imultane<^us  concurrence  of  all  the  papjrs  enumerated  in  the  regulations  B  •• 
It  IS  sufficient  according  to  the  circumstances,  that  one  of  these  papers  esUbl.''' 
the  property,  if  it  is  not  opposed  or  destroyed  by  more  peremptory  circur-- 

The  main  point  in  every  case  is.  that  the  judge  may  be  satisfied  that  rir.t 
property  is  neutral  or  not. 

We  have  a  precedent  of  what  I  assert  in  art.  6.  of  the  regulation  of  the  2U: 
October.  1774;  by  that  article  every  vessel  belonging  to  what  nation  soever 
neutral,  fnemy  or  ally,  from  which  papers  shall  be  proved  to  have  been  thro»T 
overboard,  shall  be  adjudged  good  prize,  on  the  proof  only  of  the  papers  havirs 
been  thrown  overboard:  nothing  can  be  more  explicit. 

Some  difficulties  arose  on  the  execution  of  that  severe  clause  of  th^  law 
which  has  been  renewed  by  the  regulation  of   1778 

On  the  13th  November,  1779,  the  king  wrote  to  the  admiral,  that  he  >:• 
entirely  to  him  and  to  the  commissioners  of  the  council  of  prizes  to  applv  •- 
rigidity  of  the  decree,  and  of  the  regulation  of  the  26th  July,  or  to  niodt-  •'- 
their  clauses  as  peculiar  circumsLinces  would  require  it  in  their  opinion 

.\  judgment  of  the  council  of  the  27th  December,  in  the  said  year   rerde— 
between  Pierre  Brandebourg.  master  of  the  Swedish  ship  Fortune,  and  M   i^    ■ 
Rogredourden.  captain  of  the  king's  xebec  the  Fox.  liberated  the  .;aid  ve- 
notwithst.inding  some  papers  nad  been  thrown  overboard.     It  was  deterr--"- 
hlV^i'T"""     t"»  adjudication  of  the  vessel  on  the  papers  being  thrown  c-er- 
t^f,  ^^       *\''"*^  *?  ^  "u    *"fj^  "ature  as  to  prove  the  proper^  enemv'..  ^- 
that  the  captain  ought  to  have  had  a  concern  in  throwing  his  papers  overba-- 
which  was  not  the  case  with  the  Swedish  captain 

In  this  case  without  discussing  whether  Ai.ierican  captains  are  obliRed  r  -  : 
to  exhibit  a  r<)/.-  dequtfage.  attested  by  the  public  officers  of  the  place  of  '>■-  - 
departure.  I  observe  that  thi?  role  i?  supplied  by  the  passport,  and  that  "-.e  c-- 
tured  allege  the  impossibility  for  them  to  have  cheir  role  d'equifa^.-  afte<-: 
b>  public  '^.«^'^"\>'lPh'lade!phia.  smce  the  intercourse  was  forbidden,  u-^- 
pain  of  death,  with  Philadelphia,  where  a  most  tremendous  epidemic  wa=  rar-r 
1  must  add.  that  the  passport,  the  invoice,  and  all  the  vessel's  papers   e^'-a'^" -- 


VL-RRAY  »   SCHOO.V-ER  CHARMING  BETSV  ,37 

-^  to  the  Srst,  the  cominissai^-  <  Ponalii ,   rev,-*-  rh.  i 
±.  suL,ea.  pnor  to  the  ^e.  of  the  cou"!       S^^^;^^:.^!^ 
year  6  ^uao-  I8th,  ,798.  the  seventv  of  wh.h  hJtfJ^;^'^ 

.on.  are  .n,p.ope.:,  ^led  i^s     n'th^a:^^:":^,;;"  ^"^'  :f^'^- 
^  ^-j-^-  a  great  pan,  accord:.^  to  the  judical 


-viiir:^  the   p-cjerty    ;:    ; 
?i?<ri  have  e^er  -eer.   1:--. 


i<  festered  :r.  ic:r.<l  or  bv  1  '-^.t  ■'■'t--\^c^'tl  '"''    "■""  '•'"^-  ■'^'^«:'--«  ^ 

.Ai   M   their   c^l:^•.    t:'r   'ii-:^^-^' i.- -.";-.;::!:;    r 
c^=  :i  r.ct  ir.  eve-.-  die  the  ^' e:^"-'-'--T-\ fr/^  "-/'.  ^^'er-.-e,   that   such   a 

aptcr?     But -j-her.  the  :-■■=•■«'  ---T ."-'.. '■■^■■'•■'*^'^-""    ^'^  -i^talce   of   the 
=:«  ca?t::reri  hive  a  rgh:' T,  "^ar^ageT  a/*^-4eir  '*="''"  =^  "^'  ^  ««s^. 

-et  Ji  appiy  ir.e-e  fr:r.c:;I«  •-   •-,    -^.-'J'  V-    ij 
r-:ioled  ;-:«pic:-rs  aga:r.=-  •-'•■  a-l  -   -/:"        ■^■'•-  '""*  .^P^ors  ertertain  ar.y 
^:y  :f  the  =.  :p  pr  vt:  :v  -.:'^^\^-  .v_:^  =;-P  "r-?'*'  *;^'  ^-t  the  reutral- 


-er.ce 


:?^=ra::.30.  by  the  crew  b<--?  K-V'e'^' ■-- t'l^"-;'  '(••-.'->■  f-'"  fl*«.  by  her 

•    * :<di     wrJ:    .5  j:;:';v!:.:..^:T-*^'=*f'-  ^y  her  cargo  consisting 

Pta:::   Gr-«^"  :-.-:   ^^.-'''l^.!   '•-•-•«^-    ty    ±e   name    and   the 


r.-.a::;.-.  bT  the  place  wher 
-essnancr.  ■     It  aaj  r)--— 


A— .er-.can    g 

racter   -f  Cap-j:r.   Greer    :-—[   Tuf'-'-'^  Z ''•    ''•'   ,'-"*   "^~«    »''!   t-^ 

..  _..  ^      :^*  -i"  -.!c.    '^'  *^'  '^;-'>^'  ^-.y  suspicious 

ve.^el  struck  her  cckr^a:  ^h^-"    'i::.!^%^'i^  ='^  ^^'  »^y  ^'^take:  the 

*i^  :e::  to  the  ca?f  r-  "c-.-  -^"v^-"^;  l"  f^-\«-- •  "^  preter.se  whatever 
ty  --be  reruU::-'  S."-;'V.-;--;a"^4-l.^''*  '^-'*"'':;  '"'•*  '^"^  Pr«scr:bed 
th:ni  :t  :s  net  nrne  vet  ::  ake  -''^ce  -^i^  ''^J"'\?'l  *?*-"  =-*~  •  ^-^  I 
ar^cles  capt=reti  are  restcr^    '  ""         "^  '^  *•'•  =*  ■^="^?<^^^  when  the 

•n  "ies*  drciinTTtance"  I  a.—  ■-•'  -r- — <-    ---.,_ 
b<  ?ranted  to  Capa;r   Gre<r"' -V  thrX-e^--    ■•-■l''^^*^^"^''  fv  ■'■^  ^fPif-T 
we;:  as  the  papers   f-urr"   --  •-.-.-■'*  k^"-'^^  1'       '  '.'-."_*-'•-  ■"■^"  cargo    as 
r.aie  by  Captain  Greer    iri-  the"*fVrr-.er"'-<~i!^i.-'e-~' ..-'•-—■'*?!;■ -t''   •v*'-'*''- 


se- 


ty  arb:tra:-r3  :n 


Paris.  6  Pra;r:al.  Sth  vea 


;:?-.e-i 


•■-,-•,- 


The  cc^^ncl  iec 
^::  r:   effect:  _-erer-rr-^;%- f:::-,li-^/V: 
,,   ._    ..       .   '^^  .w^-, *._.  „.e    v»  e. ;  at  .  car;" 

-?   t:    t.:e    :a-i.^;s    mi   :-terest   rla;-*-!    :v    -.iz-.:^ - 

D-:ne  it  Pir;  :n  the  >:-  PnVr'i*;! '^ti-'  -i^i-'-"-  --Ic. 
.-rffj^r  ■      

Citzien  V.iz-y  -  , 

Nf:N-:vv  --;,: 

M:Nr_-    - 


^•..aT.\:j5. 


cirizo 


:i_  -he   ve^=ei. 

"  .''■■"■■■.  Green  : 
•.■.■i-r:\   grant 


188 


JUDGMENTS  OF  THE  SUPREME  COURT 


i 


maxim  parum  pro  nihilo  habetur.  Upon  this  principle  he  is  of  opinion 
that  a  ship  ought  not  to  be  subject  to  confiscation,  even  under  the  law 
of  the  29th  Nivose,  unless  such  a  part  of  the  cargo  comes  under  the 
description  of  what  is  there  made  contraband,  as  ought  to  excite  a  pre- 
sumption of  fraud  against  all  the  rest. 

The  question  of  contraband  related  to  forty  barrels  of  pitch,  part  of 
the  cargo  of  The  Statira.  He  observed  that  pitch  was  not  made  con- 
traband by  the  treaty  of  1778,  but  as  France  was,  by  that  treaty,  en- 
titled to  all  the  advantages  of  the  most  favored  nation,  and  as  by  a 
subsequent  treaty  between  the  United  States  and  Great  Britain,  pitch 
was  among  the  enumerated  articles  of  contraband,  it  necessarily  be- 
came such  in  regard  to  France.  He.  however,  decides  the  quantity  to 
be  too  small  to  justify  condemnation,  even  upon  the  principle  of  tiie 
law  of  24th  (quaere?  29th)  Nivose.    And  the  ship  was  restored.^ 

'  The  followingacco  nt  of  the  case  of  the  Statira  is  extracted  from  London 
papers  of  Tune  1800. 

We  stated  to  our  readers  some  time  ago  the  principles  upon  which  the  new 
cotmci  of  prizes  at  Paris  proceeded  with  respect  to  neutral  vessels,  and  we 
gave  the  decision  at  length  upon  the  American  ship  Pegou.  which  was  ordered 
to  be  restored  with  costs.  That  decision  showed,  that  a  greater  degree  i)f 
system  had  been  est.iMished.  and  that  the  loose  and  frequently  unjust  principles 
upon  which  the  direii  y  acted  with  respect  to  captures  of  neutral  ships  werp 
meant  to  be  abandoned.  The  following  is  the  decision  of  the  council  on  another 
case,  that  of  the  5'to(iVa: 

-^^^.^ '"*'''''>  Captain  Seaward,  an  American  ship,  had  been  laptured  bv  ai, 
English  vessel,  and  recaptured  by  the  French  privateer  the  Hazard. 

The  first  point  which  the  commissary  considers  is,  the  effect  which  tlie 
Stattra  having  been  in  the  possession  of  the  EngHsh  ought  to  have 

He  observes,  that  if  the  vessel  captured  and  recovered  had  been  French  and 
recaptured  by  a  national  vessel,  there  would  have  been  nothing  due  to  the 
recaotor,  because  this  is  only  the  exercise  of  that  protection  which  the  state 
owes  to  all  its  subjects  in  all  circumstances.  If  it  had  been  recaptured  by  a 
privateer,  the  French  regulation  gives  the  property  of  the  vessel  to  the  recap'tor 
on  account  of  the  risk  and  danger  of  privateering.  It  might  be  an  act  of 
generosity  to  restore  the  vessel  to  the  original  owner,  but  it  is  not  of  right  that 
It  should. 

In  the  next  place,  he  considers  the  case  of  a  neutral  recaptured  from  the 
enemy.  If  really  neutral,  he  says  the  vessel  mu't  he  released.  The  ground  nf 
this  higher  degree  of  favor  for  a  neutral  he  states  to  be,  that  the  French  vcs-tl 
must  have  been  lost  in  the  country.  But  it  is  not  certain  that  the  neutril 
captured  by  an  enemy  may  not  he  released  by  the  admiralty  cou  ts  of  the 
enemy.  The  mere  capture  does  not  vest  the  property  immediately  in  the  captor. 
so  as  to  make  it  transferable  to  the  recaptor  The  commissary  considers  the 
property  not  vested  in  the  captor  till  sentence  of  condemnation. 

We  hclieve  this  is  much  milder,  and  more  favorable  for  neutrals  than  nnr 
practice.  The  being  a  certain  time  in  the  enemy's  custody,  or  m/ni  mariim, 
transfers  the  property  to  the  captor.  This  was  held  in  the  late  well-known 
cr.se  of  the  Spanish  prize,  captured  bv  the  French,  and  recaptured  hv  tlie 
English.  It  is  to  be  observed,  however,  that  a  principle  of  reciprocity  is  pitrMud. 
and  that  we  give  the  same  indulgence  to  the  neutral  which  they  would  have 
given  us  in  a  similar  case. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  jgg 

These  cases  are  read  to  show  tliat  France  had  abstained  from  those 

of  tTIv     'n    r  °'  "?""^  "'"•'  '^^^  '^^"^^^  ^'^^  -'^  i"  the  case 
,         ^^ru^jt'"*''  '""^  '°  ''""^  '''^  P^«^"t  case  within  the  prin- 
cples  estabhshed  by  the  court  in  the  case  of  Talbot  v.  SeeJn     ' 

The  general  conduct  of  France  having  been  changed,  it  is  to  be  pre- 
sumed she  would  have  been  released,  with  damaged  a;d  costs- if  not 
upon  the  pr.nciples  of  justice,  good  faith,  and  thf  law  of  n  t  ons  ye 
upon  those  of  pohcy.    France  was  at  war  with  Great  Rrita'n    parda 
host.l.t.es  existed  with  the  United  States.     The  non-intercou'rs?  law 
pre-^nted  our  vessels  from  trading  with  France  or  her  deZlenc ie  " 

San?s^  ^tTno^t^Utr  T"  °"'^  ^  '''''''  fromThe'Dan:^" 
islands.    It  IS  not  to  be  believed,  therefore,  that  they  would    bv  con- 

dcmnmg  th,s  vessel  (coming  to  them  with  those  ve^  suppHes  wh"h 

they  wanted),  embarrass  a  trade  .o  necessary  to  their Terv  ex   tence 

But  .ndependently  of  the  general  misconduct  of  France  toward  ne„. 

cargo  was  ground  of  confiscatfon  '^^         '^"•"""""y  '""'"ders  whether  her 

.l-e''SL*c;^^rtL've^sefn:;Urorrt^^^^^^  ?^*''".  ■"  "-"»  °f '-. 

re^>h^frfnT'",V.""*  '"'*,"'«  regulation  applies.  premiMng  his  opinion  th.it  such 
/  mi.^'ir      .^   ™pr<^p"ly  styled   laws,  and  thev  aro  ...r.itia  Iv  vnr  ahle  ^r 

hahctur     Upon  this  or[ndX»h,^*K     •'''%'"''!'"••■''   "V"""'   f""""'   >"■"   ">''"" 
1.1-  «nhi.r»  ,  c     P'^'"*^'P''  ♦"*".  he  IS  of  opinion  that  a  ship  ouaht  not  to 

be  subject  to  confiscation  even  under  the  law  of  the  20th  Nivose.  unless  "„ch 


,    -. 


J^ 


V- 


190 


JUDGMENTS  OF  THE  SUPREME  COURT 


trals,  the  captors  rely  upon  three  points  arising  under  French  ordi- 
nances. 

1.  That  the  role  d'equipage  wants  the  place  of  nativity  of  the  crew. 
But,  according  to  the  opinion  of  Portalis,  this  is  not  a  fatal  defect,  nor 
is  it,  of  itself,  a  sufficient  ground  for  condemnation. 

2.  That  more  than  one-third  of  the  crew  were  enemies  of  France. 
The  word  matelot,  in  the  ordinance  of  1778,  means  a  sailor  in  contra- 
distinction to  the  captain  or  master.  Exclude  the  master,  and  there 
were  only  ten  persons  on  board,  and  only  three  of  those  are  pretended 
to  be  enemies ;  so  that  one-third  were  not  enemies,  within  the  meaning 
of  the  ordinance. 

But  these  three  pretended  enemies  were  Americans.  The  hostilities 
which  existed  between  France  and  the  United  States  amounted  at  most 
to  a  partial,  limited  war,  according  to  the  decision  of  this  court  in  the 
case  of  Bos  v.  Tingy.  It  was  only  a  war  against  French  armed  force 
found  on  the  high  seas.  It  did  not  authorize  private  hostilities  between 
the  citizens  of  the  two  countries.   Individuals  are  only  enemies  to  each 

a  part  of  the  cargo  comes  under  the  description  of  what  is  there  made  contra- 
band, as  ought  to  excite  a  presumption  of  fraud  against  ail  the  rest.  What  that 
part  should  be  is  not  capable  of  definition,  but  should  be  left  to  the  enlightened 
equity  and  sound  discretion  of  the  judge. 

The  Statira  had  on  board  sixty  barrels  of  turpentine  and  forty  barrels  of 
pitch.  The  captor  contended  that  these  were  contraband;  the  captured  said. 
that  by  the  treaty  of  1778  with  the  Americans,  they  were  not  enumerated  as 
contraband. 

But  the  commissary  shows,  that  the  Americans  by  the  treaty  were  bound  to 
admit  the  French  to  all  the  advantages  of  the  most  favorite  nations ;  that  having, 
in  a  subsequent  treaty  with  Englind,  made  pitch  contraband,  with  respect  to  the 
latter,  necessarily  it  became  con:r,iband  with  regard  to  France. 

The  learned  commissary,  however,  thinks  that  even  upon  the  principle  of 
the  law  of  the  24th  Nivose,  the  quantity  of  pitch  was  too  small  to  justify  con- 
fiscation. 

In  the  next  place  the  captor  alleged,  that  2911  pieces  of  Campeachy  wood, 
part  cargo  of  the  Statira.  was  the  produce  of  English  possessions. 

This  point,  however,  had  not  been  regularly  a.scertained,  as  the  report  on  the 
subject  was  made  without  the  captured  being  called  as  a  party. 

The  commissary  states,  however,  strong  circumstances  of  suspicion  on  this 
head.  The  captured  had  not  appealed  against  the  confiscation  of  the  cargo. 
The  point  came  under  the  consideration  of  the  court  on  the  appeal  of  the 
captor,  who  wanted  to  get  both  ship  and  cargo. 

The  commissary  therefore  saw  no  reason  for  condemning  the  ship,  which 
was  clearly  neutral:  but  on  account  of  the  suspicions  against  the  charncter 
of  the  cargo,  he  thought  no  indemnification  whatever  was  due  to  the  captured. 

Judgment  was  pronounced  accordingly. 

The  piratical  decree  of  the  29th  Nivose  fyear  6).  mentioned  above  with  so 
much  severity  by  Portalis,  has  been  repealed,  and  things  have  been  placed  upnn 
the  footing  of  the  regulation  of  1778:  that  is.  the  French  are  to  treat  neiitr.ils 
in  reg,-\rd  to  contraband  in  the  s.ime  way  in  which  they  are  treated  by  ii< :  they 
will  nut  .nilow  the  .Americans  to  carry  into  England  a  commodity  which  the 
English  would  ^eiie  as  contr.iband  going  into  the  ports  of  France. 


MURRAY  V.  SCHOONER  CHARMING  BETSY 


191 


other,  in  a  general  war.  The  war  extended  only  to  those  objects 
pointed  out  in  the  acts  of  Congress;  as  to  everything  else,  the  state 
of  the  two  natrons  was  to  be  considered  as  a  state  of  peace.  It  was  a 
war  only  quoad  hoc.  The  individuals  of  the  two  nations  were  always 
neutral  to  each  other.  A  citizen  of  the  United  States  could  only  be 
considerea  as  an  enemy  of  France,  while  in  arms  against  her-  the 
neutrality  was  the  counterpart,  or  (to  use  a  mathematical  expression), 
the  complement  of  the  war.  A  citizen  of  the  United  States,  peaceably 
navigating  a  neutral  vessel,  could  not  be  burdened  with  the  character 
of  enemy. 

3.  The  master  was  a  Scot  by  birth.  The  ordinance  cited  from  1  Code 
des  Pnses,  303,  §  6.  in  support  of  this  objection,  is  in  the  alternative 
The  master  of  the  vessel  must  be  naturalized  in  a  neutral  country  or 
must  have  transferred  his  domicil  to  the  neutral  country,  three  months 
before  the  first  of  September  in  that  year.  Naturalization  is  not  neces- 
sary. If  there  be  such  a  transfer  of  the  domicil ;  and  the  domicil  is  not 
necessary,  if  the  party  be  naturalized.  But  the  authority  of  Portalis 
shows  that  these  decrees  are  not  to  be  considered  as  laws,  but  sub  mode 
rhey  are  only  regulations  made  at  particular  times,  for  particular  pur- 

If  the  same  evidence  had  been  produced  at  Guadeloupe,  which  has 
been  brought  here  (and  the  same  would  have  been  more  easily  obtained 
there),  there  can  be  no  doubt  the  vessel  would  have  been  restored  It 
IS  m  evidence  that  other  vessels  of  Mr.  Shattuck  had  been  released 
No  salvage  can  be  allowed,  unless  the  danger  was  imminent,  not  prob- 
lematical. •^ 

IV  Under  all  the  circumstances  of  the  case.  Captain  Murray  acted 
inegally.  and  is  liable  for  damages ;  which  have  been  properly  assessed 
His  subsequent  conduct  rendered  the  transaction  tortious,  ab  initio  If 
he  was  justified  in  rescuing  the  vessel  from  the  hands  of  the  French 
his  subsequent  detention  of  the  vessel,  and  the  sale  of  the  cargo  at 
Martinique  by  his  own  agent,  without  condemnation,  were  unauthor- 
ized acts,  m  violation  of  tfie  rights  of  neutrality.  The  libel  savs  nothing 
of  the  cargo;  it  is  first  mentioned  in  the  rppiication.  The' libel  only 
prays  condemnation  of  the  vessel,  on  the  ground  of  violation  of  the 
non-mtercourse  law. 

By  law.  he  was  bound  to  bring  the  vessel  and  cargo  into  a  port  of 
the  United  States  for  adjudiention.  and  had  no  authority  to  sell  the 
cargo,  before  condemnation.    As  to  the  pretense  of  her  being  an  armed 


«;• 


192 


JUDGMENTS  OF  THE  SUPREME  COURT 


French  vessel,  he  ought  to  have  sent  the  arms  into  port  with  the  vessel, 
as  the  only  evidence  of  their  existence. 

The  commander  of  the  French  privateer,  in  his  commission  to  the 
prize-master,  calls  her  the  Danish  schooner  Charming  Betsy,  William 
W.  y\  master.  There  was  no  evidence  to  impeach  the  credence  due 
to  ti.j  i-ipers  found  on  board  of  her,  which  at  that  time  had  every 
appearance  of  fairness,  and  which  have  since  been  incontestably  proved 
to  be  genuine. 

The  facts  stated  in  the  froccs  verbal  are,  that  she  had  no  log-book : 
that  the  mate  declared  himself  to  be  an  American ;  that  the  flag  and 
pendant  were  American ;  that  the  Danish  flag  had  been  made,  during 
the  chase,  which  was  confirmed  by  the  two  boys,  and  that  she  had  no 
pass  from  the  French  consul.  Whatever  weight  might  be  given 
to  these  facts,  if  tnic,  yet  the  outrageous  and  disorderly  conduct  of  the 
crew  of  the  privateer  entirely  destroys  the  credit  of  the  prods  verbal. 
and  at  best  it  would  be  only  the  declaration  of  interested  plunderers. 

But  it  is  said  that,  by  the  law  of  nations,  probable  cause  is  a  suflficient 
excuse ;  and  that  this  law  operates  as  the  law  of  nations.  In  reven\ie 
laws,  probable  cause  is  no  justification,  unless  it  is  made  so  by  the  law.-; 
themselves.  This  is  not  a  war  measure.  If  the  United  States  were  at 
war,  it  was  unnecessary,  because  the  act  of  trading  with  an  enemy  is 
itself  a  ground  of  condemnation.  This  law  was  passed  because  the 
United  States  were  not  at  war,  and  wished  to  avoid  it,  by  showing  their 
power  over  the  French  colonies  in  the  West  Indies.  It  is  a  municipal 
regulation,  as  well  suited  to  a  state  of  peace  as  of  war.  It  affects  our 
own  citizens  only.  It  is  no  part  of  the  law  of  nations.  What  won'  i 
other  nations  call  it,  were  they  bound  to  notice  it?  It  can  give  no  rici ; 
to  .search  and  seize  neutrals.    It  could  not  affect  their  rights. 

He  who  takes  must  take  at  his  peril.  The  law  only  gives  authority  t  ^ 
seize  vessels  of  the  United  States.  If  he  takes  the  vessel  of  anotl.-.r 
nation,  he  must  answer  it. 

.As  to  the  damages.  Nothing  can  justify  Captain  Murray:  hut  :" 
w.ns  a  mistake  of  the  head,  not  of  the  heart.  His  intentions  were  hon^^t 
and  correct,  hut  he  suffered  his  suspicions  to  carry  him  too  far.  i;  t 
was  an  error  in  judgment,  shall  he  have  salvage?  If  an  injurv  ':::■.- 
been  done  to  the  innocent  and  unfortunate  owner,  shall  he  havf  ::: 
redress?  The  consequences  to  him  were  the  same,  whatever  mii.; : 
h.ive  been  the  motive.  The  damages  have  been  properlv  assessc'!  iri 
the  district  court.    If  damages  are  to  be  given,  they  ought  not  to  be  lt-5 


MURRAY  V.  SCHOONER  CHARMING  BETSY 


193 


than  the  original  cost  of  vessel  and  cargo,  with  the  outfit,  insurance, 
interest  and  expenses ;  and  upon  calculation,  it  -.vill  be  found  that  the 
damages  assessed  do  not  exceed  the  amount  of  these.' 

Dallas.— It  is  said  that  Mr.  Shattuck  never  was  a  citizen  of  the 
United  States.  What  is  averred  and  admitted  need  not  be  proved.  Mr. 
Soderstrom,  in  his  rejoinder,  expressly  admits  that  he  was  once  a  citi- 
zer  of  the  United  States  by  alleging  that  he  had  transferred  his  alle- 
giance from  the  Government  of  tiie  United  States  to  his  Danish  maj- 
esty. Mr.  Shattuck's  burgher's  brief  is,  at  length,  for  the  first  time, 
produced  and  admitted  to  be  made  a  part  of  the  record.  It  bears  date 
on  the  10th  of  April,  1797.  It  may  here  be  remarked  that  some  rf  the 
witnesses  have  testified  that  he  became  a  burgher  in  1795.  This  shows 
liow  little  reliance  ought  to  be  placed  upon  their  restimony.  If,  then, 
Mr.  Shattuck  did  expatriate  himself,  it  was  not  until  April,  1797, 
It  has  been  conceded  that  a  man  can  n-^.t  expatriate  himself  unless  it 
be  done  in  a  fit  time,  with  fairness  of  intention,  and  publicitv  of  act. 

As  to  the  fitness  of  the  time.  What  w  as  the  situation  of  this  countr>- 
and  France  in  the  year  1797"  In  1795.  the  British  treaty  had  excited 
the  jealousy  of  France.  In  1796.  she  passed  several  edicts  highly  in- 
jurious to  our  commerce.  Mr.  Pinckney  had  been  sent  as  an  envoy 
extraordinary,  and  was  refused.  France  had  gone  on  in  a  long  course 
of  injury  and  insult,  which  at  length  roused  the  spirit  of  the  nation. 
On  the  14th  of  June.  1797.  the  act  of  Congress  was  passed,  prohibiting 
the  exportation  of  arms:  on  the  23d.  the  act  for  the  defense  of  the 
ports  and  harbors  of  the  United  States :  on  the  24th.  the  act  for  rais- 
ing 80,000  militia;  on  the  1st  July,  the  act  providing  a  naval  arma- 
ment; on  the  13th  of  June.  IT'^'S.  the  fir-r  non-intercourse  bill  was 
passed,  and  on  the  7th  of  July,  the  treaties  with  France  were  annulled. 
These  facts  show  that  the  time  when  Mr.  Shattuck  chose  to  expatriate 
himself,  was  a  time  of  approaching  hostilities,  and  when  everything  in- 
dicated war. 

.\s  to  the  faimtss  of  his  intention  The  same  facts  'how  what  that 
intention  was.  It  was  to  carry  on  that  trade  which  everything  tended 
to  show  would  soon  become  criminal  by  the  laws  of  war,  and  from  the 
exercise  of  which  the  other  citizens  of  the  United  State*  were  ^oout  to 

'  Mar5h.\i.l.  Ch.  J.  What  wnuM  have  been  thi-  !,t\v  a-  !■  prr.balile  cause,  if 
thfrf  had  been  a  puhhc  ceneral  war  '>et'A(?tn  Frircf  ird  thr  L'nitcd  Statts.  and 
the  vessel  had  been  taken  on  tti;n!ci<->r  of  hei-  .;  -■.  ve-'e!  nf  the  United  States, 
trading  with  the  enemy,  contrary' t-  the  law^  ..f  .v.-ir-  Would  probable  cause 
excuse,  in  nich  a  ca?e,  if  it  ^h'  -.lid  turn  'ut  that  she  wa>  a  neutral? 


194 


JUDGMENTS  OF  THE  SUPREME  COURT 


b€  interdicted.  The  act  of  Congress  points  to  this  very  case  It  was 
to  prevent  transactions  of  this  nature,  that  the  word  "elsewhere"  was 
inserted. 

the  vessel.'    The  answer  .s  obvious,  because  it  would  have  discovered 

.  Tl  u"''**"^*'°"'  ^^'''^  ^°"'''  ^^^'^  •""<=^sed  tl>e  suspicions 
excted  by  the  ongm  of  tlie  vessel,  by  the  recent  transfer,  by  the  nature 
of  th.  cargo,  and  by  the  character  of  the  crew.  Domicil  in  a  neutral 
country  gives  a  man  only  the  rights  of  trade ;  it  will  not  justify  him  in 
a  violation  of  the  laws  of  his  country.  /   ■    •  m 

If.  then,  Mr.  Shattuck  could  not  expatriate  himself,  or  if  he  has 
not  expatriated  himself,  he  is  bound  to  obey  the  laws  of  the  United 

residing  in  a  foreign  country;  as  the  United  States  have  done  in  the 
Taw         ^"^'"'  respecting  the  slave-trade  and  in  the  non-intercourse 

The  question,  whether  the  vessel  was  capable  of  annoying  our  com- 
merce, depends  upon  matter  of  fact,  of  which  the  court  will  judge 
The  number  of  men  was  sufficient;  the  testimony  respecting  the  cut- 
lasses is  supported  by  the  nature  of  the  transaction,  and  by  the  usage 

IaX.  ^'"'^  '™'  *''"  "'"^^"y  ^°  P^^^*^"*  C^Pt^in  Wright 

and  his  boys  from  rising  and  rescuing  the  vessel.  Circumstances  are 
as  strong  as  oaths,  and  are  generally  more  satisfactory.  The  vessel 
having  port-ho^s.  was  constructed  for  war,  and  in  an  hour  after  her 
a.rual  a  Guadeloupe,  might  have  been  completely  equipped.  Upon 
^e  principles  of  the  case  of  Taltot  v.  Scen^an,  Captain  Murray  wa 
bound  to  g^ard  agamst  this,  and  he  would  have  been  culpable,  if  1 
had  suffered  her  to  escape. 

FrfncVhi'''"^  ?''  '''l^''  ""'  '"  ^'"^"  °^  condemnation  bv  the 
French,  because  France  had  ceased  from  her  violation  of  the  law.  of 

uary,  1.98,  and  because  one-th.rd  of  the  crew  were  not  her  enemie. 
wo.Tr  'L''"'  'V  °"'  ^'■°""^  ''  condemnation  remainT I 

ene^v  to"'       ?  i^"'"""^"     '''''  ''''''  ^^^  ^^-^^^^red  from 
enrniy  to  a  neutral,  during  the  heat  of  hostilities.    This  alone  w,,t 

Tr^r^Cr/Z    °^<^-^--^'•-.  -der  the  ordinance  a     advde 
from  1  Code  dcs  Prases.  304.  art  7.    In  the  case  of  Talbot  v    <ce,>u.n 

ndeTrFrj;  h"  T  T^^'f  ^'^  ^"^^'  ^^'  "'^^"^  ^^  Z^Z. 


I 
% 

■I 

i 

■J 


MURRAY  V.  SCHOONER  CHARMING  BETSY  I95 

The  conduct  of  Captain  Murray  was  not  illegal.  He  was  bound,  by 
law,  as  well  as  by  his  instructions,  to  take  the  vessel  out  of  the  hands 
of  the  French.  It  was  with  the  consent,  if  not  at  the  request  of  Cap- 
tarn  Wnght ;  and  it  was  in  itself  an  act  of  humanity.  His  conduct  was 
fair,  upright  and  honorable  in  the  whole  transaction.  He  offered  to 
take  security  for  the  vessel  and  cargo.  The  cargo  was  perishable :  if  it 
had  been  brought  to  the  United  States,  it  would  not  have  been  in  a 
merchanuble  condition ;  or  if  it  had  been,  it  would  not  have  sold  so  high 
here  (being  chiefly  articles  of  American  produce)  as  at  Martinique 
The  sale  was  fair,  and  the  proceeds  brought  to  the  United  States  to 
wait  the  event  of  the  trial. 

Probable  cause  is  a  thing  of  maritime  jurisdiction ;  and  authorities  in 
point  may  be  found,  even  at  common  law.  U  it  is  a  municipal  regula- 
tion. It  IS  one  which  aflFects  the  whole  worid.  It  is  engrafted  upon  the 
Uw  of  nations.  It  is  municipal  only  as  it  emanates  from  the  municipal 
authonty  of  the  nation.  But  the  whole  world  is  bound  to  notice  a  law 
which  affects  the  interests  of  all  nations  in  the  world. 

As  to  the  damages.  The  principles  upon  which  they  are  assessed  do 
not  appear  from  the  report  of  the  assessors,  but  the  probability  is  that 
they  were  founded  upon  the  estimates  of  the  probable  profits  of  the 
voyage,  as  stated  in  tlie  testimony  of  some  of  the  witnesses.  In  a  case 
of  this  kind,  where  the  purity  of  intention  is  admitted,  it  can  never  be 
proper  to  give  speculative  or  vindictive  damages.' 

Martin,  in  reply.—!.  As  to  the  national  character  of  Shattuck.  He 
was  bom  before  the  revolution;  probablv,  in  1773  or  1/74 ■  at  least 
twenty-one  y«ars  before  April  lOth,  1797.  which  will  bring  'it  before 
the  Declaration  of  Independence.  In  Duane's  Case,  it  was  decided  that 
even  if  it  had  been  proved,  that  he  was  bom  in  New  York,  vet  his  birth 
being  before  the  revolution,  and  having  been  carried  to  Ireland  during 
his  minority,  he  was  an  alien. 

The  rejoinder  of  Mr.  Soderstrom  does  not  admit  the  fact  that  ^^hat- 
tuck  was  a  citizen  of  the  United  States :  but  if  it  did.  it  is  coupled  with 
an  express  allegation  that  he  had  duly  e.xpatriated  himself:  and  if  part 
IS  taken,  the  whole  must  be  taken.  The  words  of  the  rejoinder  are, 
"and  this  party  expressly  alleges  and  avers  that  the  said  Jared  Shattuck,' 
at  the  several  times  and  periods  above  mentioned,  and  long  before,  and 
tn  the  intermediate  times  which  elapsed  between  the  said  several  times 

the  '^,1?,n!;"thl'i   T  illSl""^  ^^  '^'   9"'^   ^"'''"    ^"'   authorities   to   support 
Mr    n»    ?.  ,  ?    '^^°^'''''  *5?"'*  "n  *'**'''   *  justification   in   maritime  Zt,, 

t^e^«irs;V""\e-m.7coV'  '^°*'"'''  ""''''  ^'  ■"""''''''  ^*-  -'^  ^ 


f  1, 


196 


JUDGMENTS  OF  THE  SUPREME  COURT 


or  periods,  had  been,  then  was,  ever  since  hath  been,  and  now  is,  a 
subject  of  his  majesty  the  king  of  Denmark,  owing  allegiance  to  his 
said  majesty,  and  to  no  other  prince,  potentate,  state  or  sovereignty 
whatever;  and  that  he,  the  said  Jared  Shattuck,  had,  long  before  his 
said  purchase  of  the  said  schooner,  duly  expatriated  himself  from  the 
doniinior.s  of  the  United  States,  to  those  of  his  said  majesty ;  and  trans- 
ferred his  allegiance  and  subjection  from  the  said  United  States  and 
their  government  to  his  said  majesty  and  his  government."  The  whole 
purport  of  which  is,  that  if  he  was  ever  a  citizen  of  the  United  States, 
he  had  expatriated  himself. 

Even  if  it  was  an  admission  of  the  fact,  yet  it  could  not  prejudice 
Mr.  Shattuck,  as  the  rejoinder  is  by  Mr.  Soderstrom,  in  character  of 
consul  of  Denmark,  and  as  the  representative  of  the  nation.  If  he  was 
born  before  the  revolution,  he  never  owed  natural  allegiance  to  the 
United  States;  and  if  he  remained  here,  after  the  revolution,  during 
part  of  his  minority,  he  owed  only  a  temporary  and  local  allegiance; 
during  the  existence  of  which,  if  he  had  taken  up  arms  against  the 
United  States,  he  would  have  been  guilty  of  treason.  But  that  alle- 
giance continued  only  while  he  was  a  resident  of  the  country ;  he  had  a 
right  to  transfer  such  temporary  allegiance  whenever  he  pleased.  Fos- 
ter's Cr.  Law,  183,  185. 

That  he  acted  with  a  fair  and  honest  intention  is  proved  by  his  bona 
fide  residence  and  domicil  for  ten  or  eleven  years.  2  Browne's  Civil 
and  .\dmiralty  Law.  328.  The  navigation  act  of  Great  Britain  is  a 
municipal  law.  and  yet  a  harm  Hdc  domicil  and  residence  of  foreigners, 
were  held  sufficient  to  bring  the  persons  within  its  provisions.  Scott 
qui  tam,  v.  Schwarts,  Coniyns,  677.' 


>  The  case  of  Scott  v.  Schwartc.  was  an  into,  .ration  against  the  Russian 
ship  Thf  Constant,  because  the  master  and  three-fourths  of  the  mariners  were 
not  of  that  country  or  place,  according  to  the  Statute  of  12.  Car.  2,  C.  18,  §  8. 
The  ship  was  built  in  Russia,  and  the  cargo  was  the  product  of  that  countn-. 
The  master  was  born  out  of  the  Russian  dominions,  but  in  1733  was  admitted, 
and  ever  since  continued  a  burgher  of  Riga;  and  had  been  a  resident  there, 
when  not  engaged  in  foreign  voyages,  and  traded  from  thence,  nine  years  before 
the  sei2ure.  There  were  only  eleven  mariners  on  board,  of  whom  four  were 
born  in  Russia;  Morgan  a  fifth  was  born  in  Ireland  and  there  bound  apprentice 
to  the  master,  and  as  such  went  with  him  to  Riga,  and  for  three  or  four  years 
before  the  sei-.ure,  served  on  board  the  same  ship  and  sailed  therein  from  Riga, 
on  this  and  former  voyages.  The  other  six  were  born  out  of  the  dominions  of 
Russia,  but  Stephen  Hanson,  one  of  them,  had  resided  at  Riga  eight  years  next 
before  the  seizure — Hans  Yasper  five  years— Rein  Steingrave  four  years,  and 
Derrick  Andrews,  the  cook,  seven  years,  and  these  four,  during  those  years  had 
sailed  from  Riga  in  that  and  other  vessels. 

It  was  adjudged  that  these  people  were  of  that  country  or  place,  within  the 
meaning  of  the  Statute,  and  the  vessel  properly  manned  and  navigated. 


MURRAY  V.  SCHOONER  CHARMING  BETSV  197 

But  a  stronger  case  than  that  is  found  in  1  Bos.  &  Pul  430  ( Mar 
ryattv.  mison),  in  the  exchequer  chamber,  on  a  writ  of  error  from 
the  kmg  s  bench.  In  that  case,  a  natural-born  British  subject,  natural- 
ized m  the  Ln.ted  States,  since  the  peace,  was  adjudged  to  be  a  citizen 
of  the  United  States,  within  the  treaty  and  navigation  acts  of  Great 
Britain,  so  as  to  carry  on  a  direct  trade  from  England  to  the  British 
iiast  Indies.  The  opinion  of  Evre,  Ch.  J.,  beginning  in  p.  439,  is  very 
strong  in  our  favor.  ' 

There  is  no  probability  that  the  vessel  would  have  been  condemned 
at  Guadeloupe.  Mr.  Shattuck,  and  his  course  of  trade,  were  well  Known 
there,  and  they  had  already  released  some  of  his  vessels.  Another 
reason  is  that  Bonaparte  was  at  that  time  negotiating  with  the  northern 
powers  of  Europe,  to  form  a  coalition  to  support  the  principle  that 
free  ships  should  make  free  goods;  and  he  would  have  succeeded  but 
for  the  able  negotiations  of  Lord  Nelson  at  Copenhagen. 

In  Park  on  Insurance,  363,  it  is  said,  "If  the  ground  of  decision  ap- 
pear to  be,  not  on  the  want  of  neutrality,  but  upon  a  foreign  ordinance 
manifestly  unjust,  and  contrary  to  the  law  of  nations,  and  the  insured 
has  only  infringed  such  a  partial  law;  as  the  condemnation  did  not 
proceed  on  the  point  of  neutrality,  it  can  not  apply  to  the  warranty  so  as 
to  discharge  the  insurer."  And  in  support  of  this  position  he  cites  the 
case  of  Mayne  v.  Walter. 

There  is  no  ordinance  of  France  which,  upon  the  principles  estab- 
lished in  the  case  of  The  Pegou,  would  have  been  a  sufficient  ground 
of  condemnation.  The  circumstances  required  by  those  ordinances  are 
only  evidence  of  neutrality,  which  is  always  a  question  of  bona  fides 
A  condemnation  upon  either  of  these  ordinances  alone  would  have  been 
contrary  to  the  law  of  nations ;  but  if  they  are  considered  as  onlv  requir- 
ing certain  circumstances,  tending  to  establish  the  fact  of  neutralitv 
they  are  perfectly  consistent  with  that  law.  This  is  the  light  in  which 
they  have  been  considered  by  Portalis.  The  French  have  never  con- 
sidered our  vessels  as  the  vessels  of  an  enemy.  Our  vessels  have  not 
been  condemned  by  them  as  enemy  property :  but  their  sentences  have 
always  been  grounded  upon  a  pretended  violation  of  some  particular 
ordinance  of  France.  Hence,  it  appears  that  they  would  not  have  con- 
sidered an  American  vessel,  sold  to  a  Dane,  as  an  enemy's  vessel 
transferred  to  a  neutral  during  a  state  of  war. 

But  the  claim  of  salvage  is  an  afterthought.     It  was  not  necessary 
to  bring  her  to  the  United  States  to  obtain  salvage.    Salvage  is  a  ques- 


i> 


i* 


V 


198 


JUDGMENTS  OF  THE  SUPREME  COURT 


tion  of  the  law  of  nations,  and  may  be  decided  by  the  courts  of  any 
civilized  nation.  Instead  of  rendering  a  service,  he  has  done  a  tenfold 
injury.  Captain  Murray's  intentions  were  undoubtedly  correct  and  hon- 
orable, and  we  do  not  wish  vindictive  damages ;  but  MV.  Shattuck  will 
be  a  loser,  even  if  he  gains  his  cause,  and  recovers  the  damages  already 
assessed.  Probable  cause  can  not  justify  the  taking  and  bringing  in  a 
neutral ;  but  it  may  prevent  vindictive  damages. 

February  22d,  1804.  M.^rshai.l,  Ch.  J.,  delivered  the  opinion  of  the 
court. — The  Charming  Betsy  was  an  American-built  vessel,  belonging 
to  citizens  of  the  United  States,  and  sailed  from  Baltimore,  under  the 
name  of  The  Jane,  on  the  10th  of  April,  1800,  with  a  cargo  of  flour 
for  St.  Bartholomew ;  she  was  sent  out  for  the  purpose  of  being  sold. 
The  cargo  was  disposed  of  at  St.  Bartholomew ;  but  finding  it  impos- 
sible to  sell  the  vessel  at  that  place,  the  master  proceeded  with  her  to 
the  island  of  St.  Thomas,  where  she  was  disposed  of  to  Jared  Shattuck, 
who  changed  her  name  to  that  of  The  Charming  Betsy,  and  having  put 
on  board  her  a  cargo  consisting  of  American  produce,  cleared  her  out. 
as  a  Danish  vessel,  for  the  island  of  Guadeloupe. 

On  her  voyage  she  was  captured  by  a  French  privateer,  and  eight 
hands  were  put  on  board  her  for  the  purpose  of  taking  her  into  Guade- 
loupe as  a  prize.  She  was  afterwards  recaptured  by  Captain  Murray, 
commander  of  the  Constellation  frigate,  and  carried  into  Martinique. 
It  appears  that  the  master  of  The  Charming  Betsy  was  willing  to  be 
taken  into  that  island ;  but  when  there,  he  claimed  to  have  his  vessel  and 
cargo  restored,  as  being  the  property  of  Jared  Shattuck,  a  Danish 
burgher. 

Jared  Shattuck  was  born  in  the  United  States,  but  had  removed  to 
the  island  of  St.  Thomas,  while  an  infant,  and  was  proved  to  have 
resided  there  ever  since  the  year  1789  or  1790.  He  had  been  accus- 
tomed to  carry  on  trade  as  a  Danish  subject ;  had  married  a  wife  and 
acquired  real  property  in  the  island,  and  also  taken  the  oath  of  alle- 
giance to  the  crown  of  Denmark  in  1797. 

Considering  him  as  an  American  citizen,  who  was  violating  the  law 
prohibiting  all  intercourse  between  the  United  States  and  France,  or  its 
dependencies,  or  the  sale  of  the  vessel  as  a  mere  cover  to  evade  that 
law.  Captain  Murray  sold  the  car^o  of  The  Charming  Betsy,  which 
consisted  of  American  produce,  in  Martinique,  and  brought  the  vessel 
into  the  port  of  Philadelphia,  where  she  was  libelled  under  what  is 


MURRAY  V.  SCHOONER  CHARMING  BETSY 


199 


termed  the  non-intercourse  law.  The  vessel  and  cargo  were  claimed 
by  the  consul  of  Denmark  as  being  the  bona  fide  property  of  a  Danish 
subject. 

This  cause  came  on  to  be  heard  before  the  judge  for  the  district  of 
Pennsylvania,  who  declared  the  seizure  to  be  illegal,  and  that  the  vessel 
ought  to  be  restored,  and  the  proceeds  of  the  cargo  paid  to  the  claimant, 
or  his  lawful  agent,  together  with  costs  and  such  damages  as  should 
be  assessed  by  the  clerk  of  the  court,  who  was  directed  to  inquire  into 
and  report  the  amount  thereof;  for  which  purpose  he  was  also  directed 
to  associate  with  himself  two  intelligent  merchants  of  the  district,  and 
duly  inquire  what  damage  Jared  Shattuck  had  sustained  by  reason  of 
the  premises.  If  they  should  be  of  opinion  that  the  officers  and  crew 
of  the  Constellation  had  conferred  any  benefit  on  the  owners  of  The 
Charming  Betsy,  by  rescuing  her  out  of  the  hands  of  the  French  cap- 
tors, they  were,  in  the  adjustment,  to  allow  reasonable  compensation 
for  the  service. 

In  pursuance  of  this  order,  th-  clerk  associated  with  himself  two 
merchants,  and  reported  that  having  examined  the  proofs  and  vouchers 
exhibited  in  t  ise,  they  were  of  opinion  that  the  owner  of  the  vessel 

and  cargo  hac  istained  damage  to  the  amount  of  $20,594.16,  from 
which  is  to  be  ueducted  the  sum  of  $4,363.86,  tl  mt  of  moneys 

paid  into  court  arising  from  the  sales  of  the  cargo,  e  further 

sum  of  $1,300,  being  the  residue  of  the  proceeds  of  the  i  sales  re- 
maining, to  be  brought  into  court.  $',663.86.  This  estimate  is  exclusive 
of  the  value  of  the  vessel,  which  was  fixed  at  $3,000.  To  this  report 
an  account  is  annexed,  in  which  the  damages,  without  particularizing 
the  items  on  which  the  estimate  was  formed,  were  stated  at  $14,930.30. 

No  exceptions  having  been  taken  to  this  report,  it  was  confirmed,  and, 
by  the  final  sentence  of  the  court,  Captain  Murray  was  ordered  to  pay 
the  amount  thereof.  From  this  decree  an  appeal  was  '>rayed  to  the 
circuit  court,  where  the  decree  was  affirmed  so  far  as  i'  lirected  resti- 
tution of  the  vessel,  and  payment  to  the  claimant  of  the  -it  proceeds  of 
the  sale  of  the  cargo  in  Martinique,  and  reversed  for  the  residue.  From 
this  decree,  each  party  has  appealed  to  this  court. 

It  is  contended  on  the  part  of  the  captors,  in  substance.  1st.  That  the 
vessel  Charming  Betsy  and  cargo  are  confiscable  under  the  laws  of  the 
United  States.  If  not  so,  2d.  That  the  captors  are  entitled  to  salvage. 
If  this  is  against  them.  3d.  That  they  ought  to  be  excused  from  dam- 
ages, because  there  was  probable  cause  for  seizing  the  vessel  and  bring- 
ing her  into  port. 


It  'i? 


%k  * 


fi-iWJ 


^  . 


200 


JUDGMENTS  OF  THE  SUPREME  COURT 


1.  Is  The  Charming  Betsy  subject  to  seizure  and  condemnation  for 
having  violated  a  law  of  the  United  States?  The  libel  claims  this  for- 
feiture, under  the  act  passed  in  February,  1800,  further  to  suspend  the 
commercial  intercourse  between  the  United  States  and  France,  and  the 
dependencies  thereof.  That  act  declares,  "that  all  commercial  inter- 
course," etc.  It  has  been  very  properly  observed,  in  argument,  that  the 
building  of  vessels  in  the  United  States  for  sale  to  neutrals,  in  the 
islands  is,  during  war,  a  profitable  business,  which  Congress  can  not 
be  intended  to  have  prohibited,  unless  that  intent  be  manifested  by 
express  words,  or  a  very  plain  and  necessary  implication.  It  has  also 
been  observed  that  an  act  of  Congress  ought  never  to  be  construed  to 
violate  the  law  of  nations,  if  any  other  possible  construction  remains, 
and  consequently  can  never  be  construed  to  violate  neutral  rights,  or 
to  aflfect  neutral  commerce,  further  than  is  warranted  by  the  law  of 
nations  as  understood  in  this  country.  These  principles  are  believed  to 
be  correct,  and  they  ought  to  be  kept  in  view,  in  construing  the  c 
now  under  consideration. 

The  first  sentence  of  the  act  which  describes  the  persons  whose 
commercial  intercourse  with  France,  or  her  dependencies,  is  to  be 
prohibited,  names  any  person  or  persons  resident  within  the  United 
States,  or  under  their  protection.  Commerce  carried  on  by  persons 
within  this  description  is  declared  to  be  illicit.  From  persons  the  act 
proceeds  to  things,  and  declares  explici  !y  the  cases  in  which  the  vessels 
employed  in  this  illicit  commerce  shall  be  forfeited.  Any  vessel  owned, 
hired  or  employed,  wholly  or  in  part,  by  any  person  residing  within  the 
United  States,  or  by  any  citizer  thereof,  residing  elsewhere,  which  shall 
perform  certain  acts  recited  in  the  law,  becomes  liable  to  forfeiture. 
It  seems  to  the  court  to  be  a  correct  constniction  of  these  words  to 
say  that  the  vessel  must  be  of  this  description,  not  at  the  time  of  the 
passage  of  the  law,  but  at  the  time  when  the  act  of  forfeiture  shall  be 
committed. 

The  cases  of  forfeiture  are.  first,  a  vessel  of  the  description  men- 
tioned which  shall  be  voluntarily  carried,  or  shall  be  destined,  or  per- 
mitted to  proceed  to  any  port  within  the  French  Republic.  She  must. 
when  carried,  or  destined,  or  permitted  to  proceed  to  such  port,  be  a 
vessel  within  tiie  description  of  the  act.  The  second  class  of  cases  are 
those  where  vessels  shall  be  sold,  bartered,  intrusted,  or  transferred, 
for  the  purpose  that  they  may  proceed  to  such  port  or  place.  This 
part  of  the  section  makes  the  crime  of  the  sale  dependent  on  the  purpose 


MURRAY  V.  SCHOONER  CHARMING  BETSY  201 

for  which  it  was  made.    If  it  was  intended  that  any  American  vessel 

th^co'L'JJctrH-^'Kr?"  '"■'''  ''"^"^•°"  °^  ''''  "-'"•'  •-  >-"' "o 
.n   nfT  T       ^''f '■'*'"  ""P°^^d  on  her  while  she  belonged  to  citi- 
zens of  the  Unued  States,  such  extraordinary  inte. .  ought  to  have  been 
plamly  expressed ;  and  if  it  was  designed  to  prohibit  the  sale  of  Ameri- 

with  which  the  sale  was  made  ought  not  to  have  been  inserted.     The 

traffic  by  or  for  any  person  resident  within  ihe  territories  of  the  French 
Repubhc.  or  any  of  its  dependencies.  In  *hese  cases,  too.  the  ve  sels 
mus  be  w.th,n  the  description  of  the  act.  a .  the  time  the  ,a  t  produc  ng 
the  forfeiture  was  committed.  H'"uui->ng 

The  Jane  having  been  completely  transferred,  in  the  island  of  St 
Thomas,  by  a  bona  fide  sale,  to  Jared  Shattuck.  and  the  forfeiture  al- 

of  the  vessel  to  forfeiture  must  depend  on  the  inquiry,  whether  the 
purchaser  was  within  the  description  of  the  act 
Tared  Shattuck  having  been  born  within  the  United  States,  and  not 

scribed  by  law,  ,s  said  to  remain  a  citizen,  entitled  to  the  benefit  and 
subject  to  the  disabilities  imposed  upon  American  citizens ;  and  there- 
fore to  come  expressly  within  the  description  of  the  act  which  com- 
prehends American  citizens  residing  elsewhere 

WTiether  a  person  born  within  the  United  States,  or  becoming  a  citi- 
zen according  to  the  established  laws  of  the  countrv.  can  oivest  himself 
abso  utely  of  that  character,  otherwise  than  in  such  manner  as  may 
be  prescribed  by  law.  is  a  question  which  it  is  not  necessary  at  present 
to  decide.  The  cases  cited  at  bar.  and  the  argtiments  drawn  from  tTe 
general  conduct  of  the  United  States  on  this  interesting  subject^eem 

:z:  in  ':r^''''' '''  ^^'"'^'^'^-  ''^^  ^"  •^--'-"  -■^■-z; 

his  "nmi^n  ^Z^  '°""'''''  '^'  '^'''"•^ercial  privileges  attached  to 
h.s  domicl,  and  be  exempted  from  the  operation  of  an  act  expressed 
such  general  terms  as  that  now  under  consideration.  Indeed  the 
very  expressions  of  the  act  would  seem  to  exchide  ..  person  unde;  the 
circumstances  of  Jared  Shattuck.  H^  i,  not  a  person  under  he 
protection  of  the  United  States.  The  .^  lerica.n  citizen  who  goes  Lo  a 
for  .gn  country,  although  he  owes  lo.  .1  and  temporaiy  alliance  to 

t.on.  entitled  to  the  protection  of  his  own  government:  and  if.  without 


202 


JUDGMENTS  OF  THE  SUPREME  COURT 


I 

"i 


the  violation  of  any  municipal  law,  he  should  be  oppressed  unjustly, 
he  would  have  a  right  to  claim  that  protection,  and  the  interposition  of 
the  American  Government  in  his  favor,  would  be  cor.bidered  as  a  justi- 
fiable interposition.  But  his  situation  is  completely  changed,  where, 
by  his  own  act,  he  has  made  himself  the  subject  of  a  foreign  power. 
Although  this  act  may  not  be  sufficient  to  rescue  him  from  punishment 
for  any  crime  committed  against  the  United  States,  a  point  not  intended 
to  be  decided,  yet  it  certainly  places  him  out  of  the  protection  of  the 
United  States,  while  within  the  territory  of  the  sovereign  to  whom  he 
has  sworn  allegiance,  and,  consequently,  takes  him  out  of  the  descrip- 
tion of  the  act. 

It  is,  therefore,  the  opinion  of  the  court  that  The  Charming  Betsy, 
with  her  cargo,  being  at  the  time  of  her  recapture  the  bona  Me  property 
of  a  Danish  burgher,  is  not  forfeitable,  in  consequence  of  her  being 
employed  in  carrying  on  trade  and  commerce  with  a  French  island. 

2.  The  vessel  not  being  liable  to  confiscation,  the  court  is  brought  to 
the  second  question,  which  is — Are  the  recaptors  entitled  to  salvage  ? 

In  the  case  of  The  Amelia  (1  Cr.  1),  it  was  decided,  on  mature  con- 
sideration, that  a  neutral  armed  vessel,  in  possession  oi  the  French. 
might,  in  the  then  existing  state  of  hostilities  between  the  two  nations, 
be  lawfully  captured ;  and  if  there  were  well-founded  reasons  for  the 
opinion,  that  she  was  in  imminent  hazard  of  being  condemned  as  a 
prize,  the  recaptors  would  be  entitled  to  salvage.  Tne  court  is  well 
satisfied  with  the  decision  given  in  that  case,  and  consi^'ers  it  as  a 
precedent  not  to  be  departed  from  in  other  cases  attended  \  Xh  circnni- 
stances  substantially  similar  to  those  of  The  Amelia.  One  of  these  cir- 
cumstances is,  that  the  vessel  should  be  in  a  condition  to  annoy  Ameri- 
can commerce. 

The  degree  of  arming  which  should  bring  a  vessel  within  this  de- 
scription has  not  been  ascertained,  and  perhaps  it  would  be  difficult 
precisely  to  mark  the  limits,  the  passing  of  which  would  bring  a  cap- 
tured vessel  within  the  description  of  the  acts  of  Congress  on  this  suh- 
ject.  But  although  there  may  be  difficulty  in  some  cases,  ^here  appears 
to  be  none  in  this.  According  to  the  testimony  of  the  case,  there  w.i- 
on  board  but  one  musket,  a  few  ounces  of  powder  ind  a  few  halls 
The  testimony  respecting  the  cutlasses  is  not  considered,  as  sliowintr 
that  they  were  in  the  vessel  at  the  time  of  hrr  recapture.  The  capacity 
of  this  vessel  for  offense  appears  not  sufficient  to  warrant  the  capture  of 
her  as  an  armed  vessel.    Neither  is  it  proved  to  the  satisfaction  of  the 


MURRAY  V.  SCHOONER  CHARMING  BETSY  203 

court,  that  The  Charming  Betsy  was  in  such  imminent  hazard  of  being 
condemned,  as  to  entitle  the  recaptors  to  salvage. 

It  remains  to  inquire  whether  there  was  in  this  case  such  probable 
cause  for  sendmg  in  The  Charming  Betsy  for  adjudication  as  will 
justify  Captam  Murray  for  having  broken  up  her  voyage,  and  excuse 
h.m  from  the  damages  sustained  thereby.  To  effect  this,  there  must 
have  been  substantial  reason  for  believing  her  to  have  been  at  the  time 
wholly  or  in  part,  an  American  vessel,  within  the  description  of  the  act ' 
or  hired  or  employed  by  Americans;  or  sold,  bartered  or  trusted  for 
the  purpose  of  carrying  on  trade  to  some  port  or  place  belonging  to 
the  French  Republic.  ^ 

The  circumstances  relied  upon  are,  principally,  1st.  The  procds  verbal 
of  the  French  captors.    2d.  That  she  was  an  American-built  vessel 
3d.  That  the  sale  was  recent.    4th.  That  the  master  was  a  Scotchman 
and  the  muster-roll  showed  that  the  crew  were  not  Danes.    5th    The' 
general  practice  in  the  Danish  islands  of  covering  neutral  property 

The  procds  verbal  contains  an  assertion  that  the  mate  declared' that 
he  was  an  American,  and  that  their  flag  had  been  American,  and  had 
been  changed,  during  the  cruise,  to  Danish,  which  declaration  was  con- 
firmed by  several  of  the  crew.  If  the  mate  had  really  been  an  American 
the  vessel  would  not.  on  that  account,  have  been  liable  to  forfeiture' 
nor  would  that  fact  have  furnished  any  conclusive  testimony  of  the 
character  of  the  vessel.  The  procts  verbal,  however,  ought  for  several 
reasons  to  have  Leen  suspected.  The  general  conduct  of  the  French 
West  India  crui.sers,  and  the  very  circumstance  of  declaring  that  the 
Danish  colors  were  made  during  the  chase,  were  sufficient  to  destroy 
the  credibility  of  the  proems  verbal.  Captain  Murray  ought  not  to  have 
l-eheved  that  an  American  vessel,  trading  to  a  French  port,  in  the  as- 
sumed character  of  a  Danish  bottom,  would  have  been  without  Danish 
colors. 

That  she  was  an  American  vessel,  and  that  the  sale  was  recent,  can 
not  he  admitted  to  furnish  just  cause  of  suspicion,  unless  the  sale  of 
American-built  vessels  had  been  an  illegal  or  an  unusual  .ict.  That 
the  master  was  a  Scotchman,  and  that  the  names  of  the  crew  were  not 
frenerally  Danish,  are  circumstances  of  small  import,  when  it  is  recol- 
lected that  a  very  great  proportion  of  the  inh.nhitants  of  St.  Thomas 
are  British  and  Americans.  The  pracli.c  of  covering  .American  prop- 
rny  in  the  islands  might  and  would  justify  C.iptain  Murray  in  giving 
to  other  causes  of  suspicion  more  weitjht  th.nn  they  would  otherwise 


204 


JUDGMENTS  OF  THE  SUPREME  COURT 


'^     : 


> 


be  entitled  to,  but  can  not  be  itself  a  motive  for  seizure.  If  it  was,  no 
neutral  vessel  could  escape,  for  this  ground  of  suspicion  would  be  ap- 
plicable to  them  all. 

These  causes  of  suspicion,  taken  together,  ought  not  to  have  been 
deemed  sufficient  to  counterbalance  the  evidences  of  fairness  with  which 
they  were  opposed.  The  ship's  papers  appear  to  have  been  perfectly 
correct,  and  the  information  of  the  master,  uncontradicted  by  thosc 
belonging  to  the  vessel  who  were  taken  with  him,  corroborated  their 
verity.  No  circumstance  existed  which  ought  to  have  discredited  them. 
That  a  certified  copy  of  Shattuck's  oath,  as  a  Danish  subject,  was  not 
on  board,  is  immaterial,  because,  being  apparently  on  all  the  papers  a 
burgher,  and  it  being  unknown  that  he  wa^  bom  in  the  United  States, 
the  question  whether  he  had  ceased  to  be  citizen  of  the  United  State? 
could  not  present  itself. 

Nor  was  it  material,  that  the  power  given  by  the  owners  of  the  vessel 
to  their  master  to  sell  her  in  the  West  Indies,  was  not  exhibited.  It 
certainly  was  not  necessary  to  exhibit  the  instructions  under  which  tlie 
vessel  was  acquired,  when  the  fact  of  acquisition  was  fully  proved  1)\ 
the  documents  on  board,  and  by  other  testimony. 

Although  there  does  not  appear  to  have  been  such  cause  to  suspect 
The  Cliarming  Betsy  and  her  cargo  to  have  been  American,  as  would 
justify  Captain  Murray  in  bringing  her  in  for  adjudication,  yet  many 
other  circumstances  combine  with  the  fairness  of  his  character  to 
produce  a  conviction  that  he  acted  upon  correct  motives  from  a  sense 
of  duty;  for  which  reason  this  hard  case  ought  not  to  be  rendered  still 
more  so  by  a  decision  in  any  respect  oppressive. 

His  orders  were  such  as  might  well  have  induced  him  to  consider  this 
as  an  armed  vessel  within  the  law,  sailing  undc-  authority  from  the 
French  Republic;  and  such,  too,  as  might  well  have  induced  him  to 
trust  to  v»ry  light  suspicions  respecting  the  real  character  of  a  vessel 
appearing  to  belong  to  one  of  the  neutral  islands.  A  public  .ittiier. 
intiusted  on  the  high  seas  to  perform  a  duty  deemed  necessary  hy  his 
country,  and  executing  according  to  the  best  of  his  judgment  the  orders 
he  has  received,  if  he  is  a  victim  of  any  mistake  he  commits,  oufrlit 
certainly  never  to  be  assessed  with  vindictive  or  speculative  damages 
It  is  not  only  the  duty  of  the  court  to  relieve  hhn  from  such,  when 
they  plainly  appear  to  have  been  imposed  on  him,  but  no  sentetu'- 
against  him  ought  to  bt  affirmed,  where,  from  the  nature  of  the  pro- 
ceedings, the  whole  case  appears  upon  the  record,  unless  those  pro- 


MURRAY  V.  SCHOONER  CHARMING  BETSY  205 

ceedings  are  such  as  to  show  on  what  the  decree  has  been  founded 
and  to  support  that  dsxree.  *"u.iucu. 

In  the  case  at  bar  damages  are  assessed  as  they  would  be  by  the 
verdict  of  the  jury,  without  any  specification  of  items,  which  can  show 
how  the  account  was  made  up.  or  on  what  principles  the  sum  given 
as  damages  was  assessed.  This  mode  of  proceeding  would  not  Z 
approved  of  ,f  ,t  was  even  probable,  from  the  testimo^nv  contained  ^ 
the  record,  that  the  sum  reported  by  the  commissioners  of  the  di  tri  t 
court  was  really  the  sum  due.  The  district  court  ought  not  to  have 
been  satisfied  w.th  a  report,  giving  a  gross  sum  in  damages,  unaccom! 
pan,ed  by  any  explanation  of  the  principles  on  which  L  sum""s 
mT"  /h  ;  ^^P*^'"  ^*"-y  -ght  to  have  excepted  to  this  Tep^rt 

H.S  not  havmg  done  so.  however,  does  not  cure  an  error  apparent  .mon 
.t.  and  the  om.ss.on  to  show  how  the  damages  which  were  given  haS 
accrued,  so  as  to  enable  the  judge  to  decide  on  the  proprieTy  of  the 
assessment  of  his  commissioners,  is  such  an  error        "^    ^      ^  "' 

pro'eed'^^'vct'  in  ""!,"?"  '"  '7  *^"^  ''^^PP^°^^  °^  ^^'^  -"^^  «f 
a.t.ng  th.s  „       ,ess  m  the  crcuit  court,  the  error  which  has  been  stated 

"I  VVVT'  "'"•  '"^  '^  "°^  ^PP--^  probable  that  the 

M.m  for  wh,ch  the  dec.ee  of  the  district  court  was  rendered  is  reallv 
greater  than  ,t  ought  to  have  been,  according  to  the  principles  by  w"  h 
the  claim  should  be  adjusted.  f  '^:'  "y  wnicn 

Thir  court,  therefore,  is  not  satisfied  with  either  the  decree  of  the 
^.s^rict  or  crcuu  court,  and  has  directed  me  to  report  the  follol -Lg 


DFfRKK  OF  THE  CoiRT.-This  causc  came  on  to  be  heard    on  the 
transcnpt  of  the  record  of  the  circuit  court,  and  was  argued  b.Ise 

rr^'^i^r^- ''  *^  ^'^^''-^-  -^-ed  ancf decrcirr  : 

.h     le  rec  of  the  .    .  "'  V''  """''^  ^""^-  '°  ^^  '^^  '^  •-'«^-- 

h    decree  o    the  d.stnct  court,  which  directed  restitution  of  the  vessel 

•n!  payment  to  the  claimant  of  the  net  procee.ls  of  the  sale  of  the 
I  iXTn  r  ^'  ^'P*-''"'   ^'"'■"^  "^  ■■'P^"»-  ''-''"^^  one  of  the 

^'ssei  xx.T.,  rccoted.  be  reversed. 


206 


JUDGMENTS  OF  THE  SUPREME  COURT 


And  the  court,  proceeding  to  give  such  further  decree  as  the  circuit 
court  ought  to  have  given,  doth  further  adjudge,  order  and  decree, 
that  so  much  of  the  decree  of  the  district  court  as  adjudges  the  libellant 
to  pay  costs  and  damages,  be  affirmed ;  but  that  the  residue  thereof,  by 
which  the  said  damages  are  estimated  at  $20,594.16,  and  by  which  the 
libellant  was  directed  to  pay  that  sum,  be  reversed  and  annulled.  And 
this  court  does  further  order  and  decree,  that  the  cause  be  reman  led 
to  the  circuit  court,  with  directions  to  refer  it  to  commissioners,  to 
ascertain  the  damages  sustained  by  the  claimants,  in  consequence  of 
the  refusal  of  the  libellant  to  restore  the  vessel  and  cargo  at  Martinique, 
and  in  consequence  of  his  sending  her  into  a  port  of  the  United  States 
for  adjudication ;  and  that  the  said  commissiraiers  be  instructed  to  take 
the  actual  prime  cost  of  the  cargo  and  vessel,  with  interest  thereon, 
including  the  insurance  actually  paid,  and  such  expenses  as  were  neces- 
sarily sustained  in  c  -equence  of  bringing  the  vessel  into  the  United 
States,  as  the  standc.t<i  \>y  which  the  damages  ought  to  be  measured. 
Each  party  to  pay  hi.  own  costs  in  this  court,  and  in  the  circuit  court. 
All  which  is  ordered  and  decreed  accordingly.' 


LITTLE,  ET  AL.  v.  BARREME,  ET  AL.  (FLYING  FISH)'- 
Resf'onsibility  of  naz'al  officer  for  iUef;al  seizure. — Probable  cause. 

The  commander  of  a  ship  of  war  of  the  United  States,  in  obeying  his  instruc- 
tions from  the  President  of  the  United  States,  acts  at  his  peril :  if  those 
instructions  are  not  strictly  warranted  by  law,  he  is  answe.-able  in  damages 
to  any  person  injured  by  their  execution. 

The  act  of  the  9th  of  February,  1799,'  did  not  authorize  the  seizure  upon  the 
high  seas  of  any  vessels  sailing  from  a  French  port;  and  the  orders  of  the 
President  of  the  United  States  could  not  justify  such  a  seizure. 

Quaere f     Whether  probable  cause  will  excuse  from  damages? 

Appeal  from  the  Circuit  Court  for  the  District  of  Massachusetts. 

On  the  2d  of  December,  1799,  the  Danish  brigantine  Flyint:  IHsk 
was  captured,  near  the  island  of  Hispaniola,  by  the  United  States 
frigates  Boston  and  General  Green,  upon  suspicion  of  violating  (he 
Act  of  Congress,  usually  termed  the  non-intercourse  law,  passed  on 
the  9th  of  February,  1799  (1  U.  S.    Stat.  613),  by  the  1st  section  of 


'  Captain  Murray  was  reimbursed  his  damages,  interest  and  charges,  out  of  the 
Treasury  of  the  United  States,  by  an  act  of  Congress,  January  ,11,  1805. 
»2  Cranch,  170;  February  term,  180».     'iiHpra,  p.  68. 


?;1 


J 
'M 


LITTLE  V.  BARREME  (THE  FLYING  FISH)  207 

which  it  is  enacted,  "That  from  and  after  the  first  day  of  March  next 
no  ship  or  vessel  owned,  hired  or  employed,  wholly  or  in  part,  by  anJ 

frTr/n  r'  T,  ".'''  '^"'''  ^^'"'  ^"^  "'^■'^'^  ^^^'  depart  there^ 
from,  shall  be  allowed  to  proceed  directly,  or  from  any  intermediate 

^rt  or  place,  to  any  port  or  place  within  the  territory  of  the  French 

Repubhc,  or  the  dependencies  thereof,  or  to  any  place  in  the  West 

i;iVhl  'T  I'""''''  '''  acknowledged  government  of  France, 
or  shall  be  employed  ,n  any  traffic  or  commerce  with  or  for  any  person 
resKlent  w.thm  the  jurisdiction  or  under  the  authority  of  the  French 

m  n  in"  .  .  H 'f  '"".^''^  "  ^'""''  '"  ^"^  ^°>'^^^  thereafter  com- 
mencng  and  before  her  return  within  the  United  States,  shall  be 
voluntarily  carn...d  or  suffered  to  proceed  to  any  French  port  or  place 
as  aforesaid,  or  shall  be  employed  as  aforesaid,  contrary  to  the  intent 
hereof,  every  such  sh.p  or  vessel,  together  with  her  cargo,  shall  be 

nd  /h  '\t,  uu  ""T"'  '^'  '"'-^^'^  '"^  '^'  "^^  °f  'h-  l^-i'ed  States. 
Ln  ted  States,  who  w.ll  inform  and  prosecute  for  the  same;  and  shall 
be  hable  to  be  se.zed,  and  may  be  prosecuted  and  condemned,  in  any 

T  °\^'''':''J°^^  °f  the  United  States,  which  shall  be  holden 
withm  or  for  the  district  where  the  seizure  shall  be  made  " 

And  by  the  5th  section,  it  is  enacted.  "That  it  shall  be  lawful  for  the 
rres,dent  of  the  United  States  to  give  instructions  to  the  commanders 
of  the  public  armed  ships  of  the  United  States,  to  stop  and  examine 
any  ship  or  vessel  of  the  United  States,  on  the  high  seas,  which  there 
niay  be  reason  to  suspect  to  be  engaged  in  any  traffic  or  commerce 

IZeZVl  V'u"  ''""'  ^"''°^''  '"^  '^  "P°"  examination,  it  shall 
appear  that  such  sh.p  or  vessel  is  bound  or  sailing  to  any  port  or  place 
withm  the  territory  of  the  French  Republic,  or  her  dependencies,  con! 

af'?!  U  K, '"''"'  ^'  '^'''  '"'•  ''  -'*^""  ^  '^'  d"t-"  °f  'he  commander 
of  such  public  armed  vessel,  to  seize  every  such  ship  or  vessel  engaged 

tmted  States;  and  every  such  ship  or  vessel,  thus  bound  or  sailiru^ 
o  any  such  port  or  place,  shall,  upon  due  proof  thereof,  be  liable  to 
the  hke  penalties  and  forfeitures  as  are  provide.l  in  and  by  the  first 
section  of  this  act." 

P^If' M™'i!'To^''''"  '""  ^°"^"l"^"^^  "f  this  section,  bear  date  the 
iah  of  March,  l,oq,  and  are  as  follows: 

suspend  the  commerc.al   intercourse  h<-tween   the   United   States 


5 


208 


JUDGMENTS  OF  THE  SUPREME  COURT 


Lksr^r^ 


and  France,  and  the  dependencies  thereof,  the  whole  of  which 
requires  your  attention.  But  it  is  the  command  of  the  President, 
that  you  consider  particularly  the  fifth  section  as  part  of  your 
instructions,  and  govern  yourself  accordingly.  A  proper  dis- 
charge of  the  important  duties  enjoined  on  you,  arising  out  of 
this  act,  will  require  the  exercise  of  a  sound  and  impartial  judg- 
ment. You  are  not  only  to  do  all  that  in  you  lies,  to  prevent  all 
intercourse,  whether  direct  or  circuitous,  between  the  ports  of  the 
United  States  and  those  of  France  and  her  dependencies,  in  cases 
where  the  ves«jls  or  cargoes  are  apparently,  as  well  as  really, 
American,  a'-  i  protected  by  American  papers  only ;  but  you  are  to 
be  vigilant  ■  sat  vessels  or  cargoes  really  American,  but  covered 
by  Danish  o  other  foreign  papers,  and  bound  to  or  from  French 
ports,  do  not  escape  you. 

Whenever,  on  just  suspicion,  you  send  a  vessel  into  port  to  be 
dealt  with  acconliiig  to  the  afore-mentioned  law,  besides  sending 
with  her  all  her  papers,  send  all  the  evidence  you  can  obtain  to 
support  your  suspicions,  and  effect  her  condemnation.  At  the 
same  time  that  you  are  thus  attentive  to  fulfill  the  objects  of  the 
law,  you  are  to  be  extremely  careful  not  to  harass  or  injure  the 
trade  of  foreign  nations  with  whom  we  are  at  peace,  nor  the  fair 
trade  of  our  own  citizens. 

In  the  district  court  of  Massachusetts,  the  vessel  and  cargo  were 
ordered  to  be  restored,  without  damages  or  costs.  Upon  the  question 
of  damages,  the  Honorable  Judge  Lowell  delivered  the  following 
opinion : 

This  libel  is  founded  on  the  statutes  of  the  United  States.  ma<le 
to  suspend  the  commercial  intercourse  between  the  Unites'  States 
and  France,  and  the  dependencies  thereof.  The  libellants  not 
having  produced  sufficient  proof  to  bring  this  vessel  and  cargo 
so  far  within  the  provisions  of  these  statutes  as  to  incur  a  for- 
feiture thereof,  the  same  has  been  decreed  to  be  delivered  to  the 
claimants.  The  question  remaining  to  be  decided  is.  whether  the 
claimants  are  entitled  to  damages,  which  they  suggest  to  have 
arisen  to  them,  or  those  for  whom  thev  claim,  bv  the  capture  and 
detention. 

The  facts  which  appear  and  are  material  to  this  question  arc. 
that  the  vessel  was  owned,  and  her  cargo,  by  Samuel  Goodman,  a 
Prussian  by  birth,  hut  now  an  inhabitant  of  the  Danish  island  of 
St.  Thomas :  that  the  master  was  born  in,  and  is  now  of.  the  ^ame 
island,  but  for  several  years  had  been  employed  in  vessels  of  citi- 
zens of  the  United  States,  and  sailed  out  of  our  ports;  that  he 
speaks  our  language  perfectly,  in  the  accent  of  an  American,  and 
h.ns  the  appearance  of  being  one.     The  mate  is  a  citizen  of  the 


if 
I 


LITTLE  V.  BARREME  (THE  FLYING  FISH)  209 

United  States,  born  here,  and  having  always  continued  such.  The 
rest  of  the  seamen  are  Englishmen,  Portuguese  and  negroes:  the 
supercargo,  a  Frenchman.  The  vessel  had  carried  a  cargo  of 
provisions  and  dry  goods  from  St.  Thomas  to  Jeremie,  and  was 
returning  thither,  loaded  with  coffee,  when  captured.  That  dur- 
ing the  chase  by  the  American  frigates,  the  master  threw  over- 
board the  log-book,  and  certain  other  papers.  That  there  was  on 
board  a  protest  signed  by  the  master,  supercargo  and  several  sea- 
men, in  which  they  declared  that  the  vessel  had  been  bound  from 
bt.  Ihomas  to  Port  au  Prince,  and  was  compelled  by  R-gaud's 
vessels  to  go  into  Jeremie,  which  was  false  and  totally  unfounded; 
and  that,  after  the  capture,  the  master  inquired  of  his  seamen 
whether  they  would  stand  by  him  respecting  this  pretense.  That 
the  statutes  of  the  United  States  prohibiting  intercourse  with 
France  and  its  dependencies  had  been  long  before  known  at  St 
1  homas,  and  that  it  had  been  since  a  common  practice  there  to 
coyer  American  property  for  the  purpose  of  eluding  the  law   ' 

If  a  war  of  a  common  nature  had  existed  between  the  United 
btates  and  France,  no  question  would  be  made  but  the  false 
papers  found  on  board,  the  destruction  of  the  log-book  and  other 
papers,  would  be  a  sufficient  excuse  for  the  capture,  detention  and 
consequent  damages.  It  is  only  to  be  considered  whether  the  same 
principles,  as  they  respect  neutrals,  are  to  be  applied  to  this  case" 
My  mind  has  found  much  difficulty  in  settling  this  question. 
It  IS  one  altogether  new  to  me,  and  arises  from  the  peculiar  im- 
perfect war  existing  at  this  time  between  the  United  States  and 
!<  ranee.  I  have  embraced  an  opinion  with  much  diffidence  and 
am  happy  that  it  may  be  revised  in  the  superior  courts  of  the 
United  States. 

On  what  principles  is  the  right  of  belligerent  powers  to  exam- 
ine neutral  vessels,  and  the  dutv  of  neutrals  to  furnish  their  ships 
with  proper  papers,  and  to  avoid  such  conduct  as  may  give  cause 
to  suspect  they  arc  other  than  they  pretend  to  be,  founded  ?  Do 
they  not  necessarily  result  from  a  compromise  of  their  respective 
rights  m  a  state  of  war?  Neither  of  the  belligerent  powers  have 
an  original  ?nd  perfect  right  to  capture  the  property  of  neutrals 
but  they  have  a  right,  unless  restrained  bv  treatv.  iiowever  dis- 
guised or  covered  by  the  aid  of  neutrals.'  '  It  is  a  breach  of  neu- 
trality to  attempt  to  defeat  this  right.  The  practice  of  nations, 
therefore,  for  many  ages,  has  been  on  the  one  hand  to  exercise 
and  on  the  other  to  prevent  this  examination,  and  to  establish  a 
P""f'P'«  that  neutral  vessels  shall  be   furnished  with  the  usual 

>  It  IS  believed  th      there  has  been  an  error  in  cnpvins;  thi«  passage.     It  is 
.,?^„1^'J"'  f"j;'f?  verbatim  from  the  transcript  of  the  record.    The  words  to  be 

to  iS.  in.i',»^H    k'  "1    *"  T.r'^*'  '"';  =">    ''^'"  "^^  property  of  their  enemies," 
to  tie  inserted  after  the  word  "treaty." 


210 


JUDGMENTS  OF  THE  SUPREME  COURT 


li  $, 


documents  to  prove  their  neutral  state;  shall  destroy  none  of 
their  papers  nor  shall  carry  false  papers,  under  the  hazard  of 
being  exposed  to  every  inconvenience  resulting  from  capture  ex- 
amination and  detention,  except  the  eventual  condemnation  of  the 
property;  and  even  this,  by  some  writers,  has  been  held  to  be 
lawful,  and  enforced  by  some  great  maritime  powers.     Every 

TT'"^.v!'^^T.^T,}:^  *"^°'^^*^  '"  th*=  w^"--  on  the  side  of  one 
or  the  other  of  the  belligerent  powers,  but  from  the  establishment 
of  these  principles.    It  is  not  the  edicts,  statutes  or  regulations  of 

HnHr'^Th  "^"?I!  *'''''l  ''°'}^"  ^'^"^  "e^^'^  °'  i^-Pose  these 
duties.  They  are  the  result  of  common  practice,  long  existing 
often  recognized,  and  founded  on  pacific  principles.  Whenever  a 
state  of  war  exists,  these  rights  and  duties  exist. 

It  does  not  appear  to  me  to  be  material,  what  is  the  nature  of 
the  war,  general  or  limited.  Nothing  can  be  required  of  neutrals 
but  to  avoid  duplicity.    Sufficient  notice  to  neutrals  of  the  exi?  ! 

hf  H  f/v        ^°?  'k^',"  ^"  ^^""^  •'  necessary,  to  attach  to  them 
the  duties,  and  to  belligerent  nations,  the  rights,  resulting  from 
a  state  of  war     This  notice  is  given  in  diflFerent  ways,  by  procla- 
mations  heralds,  statutes  published,  and  even  by  the  mere  exist- 
ence of  hostilities  for  a  length  of  time.     As  the  island  of  St 
Thomas,  bemg  a  dependency  of  a  neutral  nation,  situated  near 
the  dependencies  of  the  belligerent  power  with  whom  the  United 
Mates  had  prohibited  intercourse,  and  having  had  long  and  full 
knowledge  of  the  state  of  things,  its  inhabitants  were,  as  I  con- 
ceive, bound  not  to  interfere  or  attempt  to  defeat  th^  meas.-.res 
lt,\i^  our  government,  m  their  limited  war.    We  find,  however 
that  these  attempts  have  been  frequent;  that  A   ..rican  vessels 
have  in  many  instances,  been  covered  in  that  island,  and  the  trade 
Tt  h'.hZT.\'""".l"*  "^^^ipt^^dicted  has  been  thus  carried  on. 
It  behooved,  then,  those  of  its  inhabitants  who  would  avoid  the 

S^aTp"  aTanl:""^'"*  "  '''  ^''^'^  °P^""  -'  ^^  ^^^^  ^-"" 

r  JJn!,rf  "'^'?"  "■^•'''^  !*"'"  '"  '"^'"^  *^^  ^'"■■t'^d  States  are 
(although  I  am  of  opinion  that,  abstractedlv  from  other  consider- 
a  ions,  It  would  give  them  the  rights  of  belligerem  powers)  p  ace< 
the  neutral  powers  in  no  new  predicament,  nor  imposes  the  Tces- 
iLfr,  f">-  "«^^\;^o<l"'nents.  or  other  conduct  than   thev   were 

£^.rca  °n.v7      "  ^'"'^^^'^l^  ^'^^^  «'  war  between  most  o 
the  great  naval  powers.    On  the  whole,  I  am  of  opinion  that  im 
damages  are  to  be  paid  the  claimants  for  the  capture  and        cn 
tion.  and  do  so  decree,  and  that  each  party  bear  their  own  costs 

From  this  decre*.  ,e  claimants  appealed  to  the  circuit  court  where 
It  was  reversed,  and  $8,504  damages  were  given.  The  following  is  the 
decree  of  the  circuit  court: 


LITTLE  V.  BARREME  (THE  FLYING  FISH)  211 

fi  I*''i'^°r"'^  ''^''•"^  *""y  ''^^'■d  the  parties  on  the  said  aooeal 
finds  the  facts  stated  in  the  said  decree  to  be  true  and  that^he' 

sTi,  "''  "^^^jr^""'.'*^"^  f™""  »he  President  of  the  UnieS 
States,  on  which  the  action  in  the  said  libel  is  founded  a  coov  of 
which  instructions  is  on  file.    And  it  further  appearL  thaf  the 

and  th"f  tri-n'r'"  ''T  r?  °^"'^'''  and'neutralVrope^ 
h1.  of  .1,  •  i''  ^^°'^^  ^'"'^  "^"^^  that  the  said  brij.  at  the 
sr  t1  ^^"1  "Pt"'-e.  was  bound  and  sailing  from  Jetem  e  to 
S^  Thomas,  a  Danish  and  neutral  port,  and  not  to  aiy  French 
St.  L'n""^;'  °^  °P'"'r  '^^'  ^'t'^°"&h  Captain  Little  had  a 
tSeln^Z?""^  "^""""  '^'  ^"'^  ^''^'  '"  "^^  of  suspecting  her 

Februarv  f7i'"v:t"vh'r.'"""''  '''''''''^  ^°  ^'^^  ^^*  °^  the  pfh  o 
fnH  ll^'u      .    ^     ^'^^^  ^^  *^'  "ot  warranted  bv  law  to  capture 

rTsk  and  iHl''if%r/'  °^  'll'  '"'^^'  ^*^*^^-  Tl-t  it  was  afh  J 
risk  and  peril,  if  the  property  was  neutral;  and  that  a  orobahle 

cause  to  suspect  the  vessel  and  cargo  American   wiH  not   [n  such 
case,  excuse  a  capture  and  sending  to  port     It   s     heref^re   rnn 
sidered.  adjudged  and  decreed  by  this 'iourt.  that*  the  saW  decree" 

th  r.H  ■'^■^'T^^''  ""'^  ''''''  ^''  ^"d  it  is  hereby  revei^sed  and 
that  the  said  claimants  recover  their  damages  and  costs 

The  damages  being  assessed  by  assessors  appointed  by  the  court,  a 
this  cou"r''  ""''  pronounced,  from  which  the  captors  appealed  to 

The  cause  was  argued  at  December  term,  1801,  by  Dexter  for  the 
appellants,  and  by  Afartin  and  Mason,  for  the  claimants.         ' 

February  27th,  Marshall,  Ch.  J.,  now  delivered  the  opinion  of  the 
court.- rhe  Ply„,g  Fish,  a  Danish  vessel,  having  on  board  Danish 
and  neutral  property,  was  captured  on  the  2d  of  December  1799  on 
a  voyage  from  Jeremie  to  St.  Thomas,  by  the  United  States  frigate 
Boston,  commanded  by  Captain  Little,  and  brought  into  the  porfof 
Boston,  where  she  was  libelled  as  an  American  vessel  that  had  violated 
the  non-intercourse  law.  The  judge  before  whom  the  cause  was  tried 
directed  a  restoration  of  the  vessel  and  cargo,  as  neutral  propertv.  but 
refused  to  award  damages  for  the  capture  and  detention,  because  in 
lii-s  opmion.  there  was  probable  cause  to  suspect  the  vessel  to  be 
American.  On  an  appeal  to  the  circuit  court,  this  sentence  was  re- 
versed because  the  Flyvu,  Fish  was  on  a  ^■ovage  from,  not  to  a 
Jrench  port,  and  was,  therefore,  had  she  even  been  an  American  ves- 
?el.  not  liable  to  capture  on  the  high  seas. 

Huring  the  hostilities  between  the  United  States  and  France,  an  act 
tor  the  suspension  of  all  intercouise  between   the  two  nations   w.i. 


if?- 


1 


3': 


212 


JUDGMENTS  OF  THE  SUPREME  COURT 


annually  passed.  That  under  which  the  Flying  Fish  was  condemned, 
declared  every  vessel  owned,  hired  or  employed,  wholly  or  in  part, 
by  an  American,  which  should  be  employed  in  any  traffic  or  commerce 
with  or  for  any  person  resident  within  the  jurisdiction,  or  under  the 
authority  of  the  French  Republic,  to  be  forfeited,  together  with  her 
cargo ;  the  one-half  to  accrue  to  the  United  States,  and  the  other  to  any 
person  or  persons,  citizens  of  the  United  States,  who  will  inform  and 
prosecute  for  the  same.  The  5th  section  of  this  act  authorizes  the 
President  of  the  United  States  to  instruct  the  commanders  of  armed 
vessels  "to  stop  and  examine  any  ship  or  vessel  of  the  United  States, 
on  the  high  seas,  which  there  may  be  reason  to  suspect  to  be  engaged 
in  any  traffic  or  commerce  contrary  to  the  true  tenor  of  the  act,  and 
if,  upon  examination,  it  should  appear  that  such  ship  or  vessel  is 
bound  or  sailing  to  any  port  or  place  within  the  territory  of  the  French 
Republic  or  her  dependencies,  it  is  rendered  lawful  to  seize  such  vessel 
and  send  her  into  the  United  States  for  adjudication. 

It  is  by  no  means  cleai  tl'at  the  President  of  the  United  States, 
whose  high  duty  it  is  to  "take  care  that  the  laws  be  faithfully 
executed,"  and  who  is  commander-in-chief  of  the  armies  and  navies 
of  the  United  States,  might  not,  without  any  special  authority  for  that 
purpose,  in  the  then  existing  state  of  things,  have  empowered  the 
officers  commanding  the  armed  v  ssels  of  the  United  States,  to  seize 
and  send  into  port  for  adjudication,  American  vessels  which  were  for- 
feited, by  being  engaged  in  this  illicit  commerce.  But  when  it  is  ob- 
served that  the  general  clause  of  the  first  section  of  the  act  which 
declares  that  "such  vessels  may  be  seized,  and  may  be  prosecuted  in 
any  district  or  circuit  court,  which  shall  be  holden  within  or  for  the 
district  where  the  seizure  shall  be  made,"  obviously  contemplates  a 
seizure  within  the  United  States;  and  that  the  5th  section  gives  a 
special  authority  to  seize  on  the  high  seas,  and  limits  that  authority  to 
the  seizure  of  vessels  bound,  or  sailing  to  a  French  port,  the  legisla- 
ture seem  to  have  prescribed  that  the  manner  in  which  this  law  shall 
be  carried  into  execution  was  to  exclude  a  seizure  of  any  vessel  not 
bound  to  a  French  port.  Of  consequence,  however  strong  the  cir- 
cumstances might  be,  which  induced  Captain  Little  to  suspect  the 
Flying  Fish  to  be  an  American  vessel,  they  could  not  excuse  the 
detention  of  her,  since  he  would  not  have  been  authorized  to  detain  her, 
had  she  been  really  American. 

It  was  so  obvious,  that  if  only  vessels  sailing  to  a  French  port  could 


LITTLE  V.  BARREME  (THE  FLYING  FISH) 


213 


A 


be  seized  on  the  high  seas,  that  the  law  would  be  very  often  evaded, 
that  this  Act  of  Congress  appears  to  have  received  a  different  con- 
struction from  the  execr'=  e  of  the  United  States;  a  construction  much 
better  calculated  to  gi  'e  ..  effect.  A  copy  of  thi*  ^ct  was  transmitted 
by  the  secretary  of  the  navy,  to  the  captains  of  the  armed  vessels,  who 
were  ordered  to  consider  the  5th  section  as  a  part  of  their  instruc- 
tions.   The  same  letter  contained  the  following  clause: 

A.  proper  discharge  of  the  important  duties  enjoined  on  you, 
ansmg  out  of  this  act,  will  require  the  exercise  of  a  sound  and 
an  impartial  judgment.  You  are  not  only  to  do  all  that  in  you 
lies  to  prevent  all  intercourse,  whether  direct  or  circuitous,  between 
the  ports  of  the  United  States  and  those  of  France  or  her  depen- 
dencies, where  the  vessels  are  apparently  as  well  as  really  Ameri- 
can, and  protected  by  American  papers  only,  but  you  are  to  be 
vigilant  that  vessels  or  cargoes,  really  American,  but  covered  by 
Danish  or  other  foreign  papers,  and  bound  to  or  from  French 
ports,  do  not  escape  you. 

These  orders,  given  by  the  executive,  under  the  construction  of  the 
Act  of  Congress  made  by  the  department  to  which  its  execution  was 
assigned,  enjoin  the  seizure  of  American  vessels  sailing  from  a  French 
port.  Is  the  officer  who  obeys  them  liable  for  damages  sustained  by 
this  misconstruction  of  the  act,  or  will  his  orders  excuse  him?  If  his 
instructions  afford  him  no  protection,  then  the  law  must  take  its 
course,  and  he  must  pay  such  damages  as  are  legally  awarded  against 
him ;  if  they  excuse  an  act,  not  otherwise  excusable,  it  would  then  be 
necessary  to  inquire,  whether  this  is  a  case  in  which  the  probable  cause 
which  existed  to  induce  a  suspicion  that  the  vessel  was  American, 
would  excuse  the  captor  from  damages  when  the  vessel  appeared  in 
fact  to  be  neutral  ? 

I  confess,  the  first  bias  of  my  mind  was  very  strong  in  favor  of  the 
opinion,  that  though  the  instructions  of  the  executive  could  not  give 
a  right,  they  might  yet  excuse  from  damages.  I  was  much  inclircd 
to  think  that  a  distinction  ought  to  be  taken  between  acts  of  civil  an  d 
those  of  military  officers ;  and  between  proceedings  within  the  be  iy 
of  the  country  and  those  on  the  high  seas.  That  implicit  obedience 
which  military  men  usually  pay  to  the  orders  of  their  superiors,  which 
indeed  is  indispensably  necessary  to  every  military  system,  appeared 
to  me  strongly  to  imply  the  principle,  that  those  orders,  if  not  to  per- 
form a  prohibited  act,  ought  to  justify  the  person  whose  general  duty 


214 


JUDGMENTS  OF  THE  SUPREME  COURT 


'/■.  '-^ 


it  is  to  obey  them,  and  who  is  placed  by  the  laws  of  his  country  in  a 
situation  which,  in  general,  requires  that  he  should  obey  them.  I  was 
strongly  inclined  to  think  that  where,  in  consequence  of  orders  from 
the  legitimate  authority,  a  vessel  is  seized  with  pure  intention,  the 
claim  of  the  injured  party  for  damages  would  be  against  that  govern- 
ment from  which  the  orders  proceeded,  and  would  be  a  proper  subject 
for  ner  'tion.  But  I  have  been  convinced  that  I  was  mistaken,  and  I 
have  1-  ded  from  this  first  opinion.  I  acquiesce  in  that  of  my 
brethren,  which  is  that  the  instructions  can  not  change  the  nature  of 
the  transaction,  nor  legalize  an  act  which,  without  those  instructions, 
would  have  been  a  plain  trespass. 

It  becomes,  therefore,  unnecessary  to  inquire  whether  the  probable 
cause  afforded  oy  the  conduct  of  the  Flying  Fish  to  suspect  her  of 
being  an  American,  would  excuse  Captain  Little  from  damages  for 
having  seized  and  sent  her  into  port?  since,  had  she  been  an  Amer- 
ican, the  seizure  would  have  been  unlawful.  Captain  Little,  then, 
must  be  answerable  in  damages  to  the  owner  of  this  neutral  vessel, 
and  as  the  account  taken  by  order  of  the  circuit  court  is  not  objection- 
able on  its  face,  and  has  not  been  excepted  to  by  counsel  before  the 
proper  tribunal,  this  court  can  receive  no  objection  to  it. 

There  appears,  then,  to  be  no  error  in  the  judgment  of  the  circuit 
co'Tt  -  "d  it  must  be  affirmed  with  costs. 


HALLKT  &  BOWNE  v.  JENKS  AND  OTHERS* 
Marine  insurance. — Ille^ial  voyage 

A  vessrl  belonging  to  citizens  of  the  United  States,  in  t'lc  year  17')9,  driven  by 
distress  into  a  Frtiich  port,  and  obliged  to  land  her  cargo,  in  order  to  make 
repairs,  and  prevented  by  the  officers  of  the  French  Government  from  re- 
lading  her  original  cargo,  and  from  taking  away  anything  in  exchange  but 
produce  or  bills,  might  purchase  and  take  away  such  produce,  without  in- 
curring the  penalties  of  the  non-intercourse  act  of  June  13,  17y8.»  And 
such  voyage  was  not  illegal,  so  as  to  avoid  the  insurance. 

Hallet  V.  Jenks,  1  Caines'  Cas.  43 ;  s.  c  1  Caines'  Rep.  64,  affirmed. 

This  was  a  writ  of  error  to  the  "Court  for  the  Trial  of  Impeach- 
ments, and  the  Correction  of  Errors,  in  the  State  of  New  York,"  un- 
der the  act  of  Congress  of  the  24th  September,  1789,  §  25  ( 1  U.  S. 


»3  Cranch,  210;  February  term,  1805. 


'  Supra,  p.  56. 


HALLET  &  BOWNE  v.  JENKS 


215 


Stat.  85),  which  gives  the  Supreme  Court  of  the  Ui  '.ed  Sutes  ap- 
pellate jurisdiction  upon  a  judgment  in  the  higliest  court  of  a  State, 
in  which  a  decision  in  the  suit  could  be  had,  where  is  drawn  in  ques- 
tion the  construction  of  any  clause  of  a  statute  of  the  United  Slates 
and  the  decision  is  against  the  right,  privilege  or  exemption,  specially 
set  up  or  claimed  by  either  party,  under  sucL  statute. 

The  action  was  upon  a  policy  of  insurance,  and  the  only  question  to 
be  decided  by  this  court  was,  whether  the  risk  insured  was  illegal, 
under  ihe  act  of  Congress  (commonly  called  the  non-intercourse  law) 
of  the  13th  June,  1798  (1  U.  S.  Stat.  565).  For  although  another 
question  appears  to  arise  upon  the  record,  viz.,  whether  a  condemna- 
tion in  a  foreign  court,  as  enemy's  property,  be  conclusive  evidence 
of  that  fact,  yet  this  court  is  prohibited  by  the  same  25th  section 
of  the  act  of  1789,  to  consider  any  other  question  than  that  which 
respects  the  construction  of  the  statute  in  dispute. 

On  the  trial  of  the  general  issue,  a  special  verdict  was  found,  con- 
taining the  following  facts: 

That  on  the  27th  day  of  April,  1799,  the  defendants,  for  a  premium 
of  25  per  cent,  insurea  for  the  plaintiffs  against  all  risks,  $1,000,  upon 
25,000  pounds  weight  of  coffee,  valued  at  20  cents  per  pound    on 
board  the  sloop  Nancy,  from  Hispaniola  to  St.  Thomas.    That  in  the 
margin  of  the  policy  was  inserted  a  clause  in  the  following  words, 
"warranted  the  property  of  the  plaintiffs,  all  Americans,"  but  that  the 
words  "all  Americans,"  were  added,  after  the  policy  was  subscribed; 
that  the  sloop  Nancy  was  built  at  Rhode  Island,  and  belonged  to  citi- 
zens of  the  United  States,  resident  in  Rhode  Island,  as  well  when  she 
left  that  State,  as  at  the  time  of  her  capture,  and  being  chartered  by 
the  plaintiffs,  sailed  from  Newport,  in  Rhode  Island,  on  the  12th  day 
of  December,  in  the  year  1798,  on  her  first  voyage  to  the  Havana: 
mat  m  the  course  of  the  said  voyage,  she  was  compelled,  being  in  dis- 
tress, to  put  into  Cape  Francois,  in  the  island  of  Hispaniola.  a  country 
m  the  possession  of  France,  where  she  arrived  on  the  5th  day  of 
January,  1799;  that  the  master  and  supercargo  of  the  sloop  were  part 
owners  of  the  cargo,  and  two  of  the  plaintiffs  in  this  suit :  that  having 
so  put  into  Cape  Frangois,  the  cargo  was  landed  to  repair  the  vessel ; 
that  the  public  officers  acting  under  the  French  Government  there! 
took  from  them  ncz.Vj  aH  the  provisions  on  board  the  sloop,  and  the 
master  and  supercargo    .'re  permitted  to  sell,  and  did  sell,  the  re- 
mainder, to  different  pe.rfons  there:  that  the  master  and  super  •  — 


216 


JUDGMENTS  OF  THE  SUPREME  COURT 


made  a  contract  with  the  public  officers,  by  which  they  were  to  be  paid 
for  the  provisions  in  thirty  days,  but  the  payment  was  not  madi':  i.*; 
with  the  proceeds  of  the  remaining  parts  of  the  cargo,  they  ;  i.rcliastvl 
the  whole  of  the  cargo  which  was  on  board,  at  the  time  c  rht>  cap- 
ture, and  also  seventeen  hogsheads  of  sugar,  which  they  sei  h  tie  n 
New  York,  on  freight;  thnt  the  said  officers  forbade  the  sa  ;.  i  asfei 
and  supercargo  of  the  sloop,  from  taking  on  board  the  cargo  landed 
from  the  said  vessel,  or  from  conveying  from  the  said  island  any 
specie,  by  reason  whereof  they  were  compelled  to  sell  the  same,  and 
to  take  the  produce  of  that  country  in  payment.  That  the  sloop,  with 
30.000  weight  of  coffee  on  board,  25,000  pounds  weight  of  which  was 
intended  to  be  insured  by  the  present  policy,  sailed  from  Cape  Fran- 
cois, on  the  23d  day  of  February,  in  the  year  last  aforesaid,  on  the 
voyage  mentioned  in  the  policy  of  -nsurance,  having  on  board  the 
usual  documents  of  an  American  vessel ;  that  the  sloop,  in  the  course 
of  her  said  voyage,  was  captured  by  a  British  frigate,  and  carried 
into  the  island  of  Tortola,  and  vessel  and  cargo  libelled,  as  well  for 
being  the  property  of  the  enemies  of  Great  Britain,  as  for  being  the 
property  of  American  citizens,  trading  contrary  to  the  laws  of  the 
United  States;  that,  at  the  time  of  the  capture  of  the  sloop,  besides 
the  documents  aforesaid,  the  following  paper  was  found  on  board : 

Liberty — Safe  Conduct — Equality 

At  the  Cape,  11th  Temiidor,  sixth  year  of  the  French  Republic, 
one  and  indivisible.  The  general  of  division  and  private  acent  of 
the  executive  directory  at  St.  Domingo,  requests  the  officers  "f 
the  French  navy  and  privateers  of  the  republic,  to  let  pass  freely 

the  American  vessel  called  the ,  master,  projierty 

of  Mr.  E.  Bom  Jenks,  merchants  at  Providence,  State  of  Rhode 
Island,  in  the  United  States,  arrived  from  the  said  place  to  tin 
Cai>e  Franqois,  for  trade  and  business.  The  citizen  French  con- 
sul, in  the  place  where  the  said  vessel  shall  be  fitted  out,  is  in 
vited  to  fill  with  her  name,  and  the  captain's,  the  blank  left  on 
thsse  presents;  in  attestation  of  which,  he  will  |)lcase  to  set  \n^ 
hand  hereupon. 

(Signed)  J.  HrnonviiXE. 
Gal'tiimr, 
the  general  secretary  of  the  agency. 


V     'li  paper  was  received  on  board  the  sl(X)p,  at  Cape  Francois, 
anci       «  on  board  when  -he  left  that  place;  that  the  property  insured 


HALLET  &  BOWNIi  v.  JENKS 


M7 


by  the  policy  aforesaid  was  claimed  by  the  said  Zebedee  Hunt,  and 
was  condemned  by  a  sentence  of  the  said  court  of  vice-admiralty  in 
the  following  words:  "That  the  said  sloop  Xancy.  and  cargo  on  board 
claimed  by  the  said  Zebedee  Hunt,  as  by  the  proceedings  will  shovv 
to  be  enemy's  property,  and  as  such,  or  otherwise,  liable  to  confisca- 
tion, and  condemned  the  same  as  good  and  lawful  prize  to  the  cap- 
tors." That  the  plaintiffs  are  Americans,  and  were  owners  of  the 
property  insured,  and  that  the  same  was  duly  abandoned  to  the  under- 
writers. 

That  part  of  the  act  of  Congress,  which  the  underwriters  contended 
had  been  violated  bv  the  defendants  in  error,  is  as  follows: 

§  1.  That  no  ship  or  vessel,  owned,  hired  or  employed,  wholly 
or  m  part  by  any  person  resident  within  the  United  States,  and 
w-hich  shall  depart  therefrom,  after  the  first  day  of  July  next 
shall  be  allowed  to  proceed  directlv.  or  from  any  intermediate 
port  or  place  to  any  port  or  place  within  the  territory  of  the 
French  Republic,  or  the  dependencies  thereof,  or  to  any  place 
m  the  West  Indies,  or  elsewhere,  under  the  acknowledged  eov- 
erriment  of  France,  or  shall  be  employed  in  any  traffic  or  commerce 
with  or  for  any  person,  resident  within  the  jurisdiction,  or  under 
the  authority  of  the  French  Republic.  And  if  any  ship  or  vessel 
in  any  voyage  thereafter  commencing,  and  before  her  return 
within  the  United  States,  shall  be  voluntarily  carried,  or  suffered 
to  proceed  to  any  French  port  or  place  as  aforesaid,  or  shall  be 
employed  as  aforesaid,  contrary  to  the  intent  hereof,  every  such 
ship  or  vessel,  together  with  her  cargo,  shall  be  forfeited  and 
shall  accrue,  etc. 

The  second  section  enacts,  that  after  the  first  of  July,  1798,  no  clear- 
ance for  a  foreign  voyage  shall  be  granted  to  any  ship  or  vessel  owned. 
hire<l  or  employed,  wholly  or  in  part,  by  any  jx^rson  resident  within 
the  United  States,  until  a  bond  shall  be  given,  in  a  sum  equal  to  the 
value  of  the  vessel  and  cargo,  "with  condition,  that  the  same  shall 
not.  during  her  intended  voyage,  or  before  her  return  within  the 
United  States,  proceed  or  be  carried,  directly  or  indirectly,  to  any 
port  or  place  within  the  territory  of  the  French  Republic,  or  the  de- 
pendencies thereof,  or  any  place  in  the  Wist  Indies,  or  elsewhere, 
iinrler  the  acknowledged  ::rovernment  of  France,  unless  by  distress  of 
weather,  or  want  of  provisions,  or  by  actual  force  or  violence,  to  be 
fully  proved  and  manifested  before  the  acquittance  of  such  bond:  and 
that  such  vessel  is  not.  and  shall  not.  be  employed,  during  her  i    xnded 


218 


JUDGMENTS  OF  THE  SUPREME  CO    RT 


r* 


voyage,  or  before  her  return,  as  aforesaid,  in  any  traffic  or  commerce 
with  or  for  any  person  resident  within  the  territory  of  that  republic, 
or  i»J  any  of  the  dependencies  thereof."  June  13,  1798.  (1  U.  S. 
Stat.  565.) 

Mason,  for  the  plaintiffs  in  error. — If  the  insurance  was  upon  an 
illegal  transaction,  the  defendants  in  error  have  no  right  to  recover. 
The  only  question  for  the  consideration  of  this  court  is,  whether  it  be 
a  transaction  prohibited  by  the  act  of  Congress.  If  the  purchase  of 
this  cargo  in  Cape  Francois  was  lawful,  the  policy  is  good. 

The  first  section  of  the  act  has  two  branches,  and  contemplates  tw<^ 
separate  offenses:  1st.  That  no  vessel  shall  be  allowed  to  go  to  a 
French  port.  But  this  prohibition  must  be  subject  to  the  general  prin- 
ciple, that  the  act  of  God.  or  of  the  public  enemy,  shall  be  an  excuse. 
2d.  That  if  driven  into  such  port  by  distress,  or  involuntarily  carried 
in,  yet  there  sh;ill  be  no  trade  or  traffic.  The  words  are,  "if  any  vessel 
shall  be  voluntarily  carried,  or  suffered  to  proceed  to  any  French  port 
or  place  as  aforesaid,  or  shall  be  employed  as  aforesaid."  The  goin;,' 
in  must  be  voluntary,  but  the  legislature  carefully  omit  the  word  vol- 
untarily, when  speaking  of  the  offense  of  trading,  for  all  trading  niii>it 
he  voluntary ;  it  can  not  be  by  compulsion.  The  object  .vas  to  prevciU 
intercourse,  and  the  statute  only  makes  the  same  saving  of  the  ftir 
feiture  which  a  court  would  have  made  without  such  a  saving  clause. 

The  condition  of  the  bond  mentioned  in  the  second  section  confiniw 
this  construction  of  the  first.  It  is  divided  into  two  clauses,  agreeable 
to  the  two  offenses  to  be  provided  against.  The  proviso  "unless  liy 
distress  of  weather,"  etc.,  is  annexed  only  to  the  offense  of  going  into 
the  port,  but  there  is  no  saving  or  exception  as  to  the  offense  of  trail 
ii'g.  If  she  had  not  been  driven  in  by  distress  of  weather,  she  wouk! 
have  been  liab!"  to  forfeiture,  under  the  first  offense.  Rut  havinp; 
been  employed  in  traffic  with  persons  resident,  etc.,  she  is  equally 
liable  to  forfeiture,  under  the  second,  and  the  condition  of  the  bond 
ha-i  been  substantially  broken. 

The  special  verdict  states,  "that  the  master  and  supercargo  were 
permitted  to  .sell,  and  did  sell,  the  residue  of  the  cargo,  to  diffeient 
|)ersons  there."  Here  was  no  compulsion.  This  selling  was  a  viola- 
tion of  the  law ;  but  it  is  not  that  which  avoids  this  policy.  The  fault 
was,  that  with  the  proceeds  of  those  sales,  the  plaintiffs  below  pur- 
chased the  cargo  insured.    There  was  no  compulsion  to  do  this,  excejit 


HALLET  &  Bi-^'VNE  v.  JENKS 


219 


*hat  I  shall  presently  notice,  as  stated  in  the  verdict.  It  will  probably 
be  contended,  that  the  following  words  of  the  verdict  show  a  com- 
pulsion, viz.,  "that  the  said  officers  forbade  the  said  master  and  super- 
cargo from  taking  on  board  the  cargo  landed  from  the  said  vessel 
or  from  conveying  from  the  said  inland  any  specie,  by  reason  whereof' 
they  were  compelled  to  sell  the  same,  and  to  take  the  produce  of  that 
country  m  payment."  But  this  is  only  the  reasoning  of  the  jury,  and 
the  words,  by  reason  whereof,  show  what  kind  of  compulsion  it 'was, 
and  that  it  was  not  that  inevitable  necessity  which  can  excuse  the  ex- 
press vi-^Iation  of  the  law.  The  owners  ought  to  have  said  to  them, 
if  you  forbid  us  to  take  away  our  property,  we  must  leave  it,  and 
look  to  our  Government  for  an  indemnification ;  for  they  have'  for- 
bidden us  to  sell  it  to  you,  or  to  purchase  a  new  cargo.  The  forbid- 
ding them  to  relade  their  goo-ls.  and  to  take  away  specie,  was  no  com- 
Fulsion  to  purchase  produce.  Tlie  verdict  does  not  state  that  the 
nia.ster  or  supercargo  attempted  to  resist  the  force;  it  may  be  wholly 
a  colorab'e  transaction. 

The  act  of  the  27th  Februarv,  1800  (2  U.  S.  Stat.  7),  shows  what 
ihe  construction  of  that  of  1798  ought  to  be.  The  third  section  of  the 
former  provides,  .;  *  in  case  the  vessel  shall  be  compelled,  by  di.stres3 
or  .'superior  force,  u  ,.^0  into  a  French  port,  and  shall  there  necessarily 
unlade  and  deliver,  or  shall  be  deprived  of  any  cargo  then  on  board, 
the  master  may  receive  payment  in  bills  of  exchange,  money  or  bullion, 
and  not  otherwis.  "and  shall  not  thereby  be  understood  to  contravene 
this  law."  This  .s  a  clear  implication,  that  if  there  had  not  h'en  such 
an  express  permission  to  receive  pa>TOent  in  bills  of  exchange,  money 
or  bullion,  it  would  have  been  a  contravention  of  the  law;  and  that 
law,  excepting  this  provision,  is  substantiallv  the  same  as  the  law  of 
1798. 


Harfcr,  contra.— I  might  safely  agree  to  the  first  position  taken  by 
ihe  opposite  counsel,  that  the  first  section  of  the  act  of  1798  creates 
twc.  distinct  offenses.  But  this  is  not  so.  The  whole  constitutes  but 
one  oflFense.  Mow  is  a  ship  to  be  employed  in  traffic  ?  She  must  bring 
and  carry.  If  she  did  not  go  voluntarily,  she  was  not  employed  in 
traffick'-":  H  the  master  sell  the  cargo,  under  such  cir:umstanccs.  the 
ve<;sel  is  not  employed  in  traflTic.  But  if  the  act  creates  two  separate 
offenses,  how  is  the  vessel  employed  in  the  traffic?  She  did  not  carry 
thf  cargo  there  voluntarily.     Rut  it  being  there,  and  landed,  neccs- 


»l-    ■ 
i   ■ 


220 


JUDGMENTS  OF  THE  SUPREME  COURT 


: 


sarily  landed,  how  is  the  vessel  concerned  in  the  sales  and  purchases 
made  by  the  master?  The  necessity  of  repairing  the  vessel  is  as  much 
an  excuse  for  landing  the  cargo,  as  stress  of  weather  was  for  going 
in.  The  master  was  forbidden  to  relade  it.  But  a  difference  is  taken 
between  prohibition  and  prevention.  It  is  said,  that  the  forbidding  is 
not  preventing.  But  by  whom  was  the  prohibition?  By  the  officers 
of  the  Government,  having  authority  and  power  to  carry  the  prohibi- 
tion into  effect.    It  was,  therefore,  actual  prevention. 

What  was  the  mischief  intended  to  be  remedied  by  the  act  of  Con- 
gress? Not  such  a  sale  as  this.  It  was  to  prevent  a  voluntary  inter- 
course, not  to  prevent  citizens  of  the  United  States  from  rescuing 
their  property  from  impending  loss.  What  is  traffic?  A  contract  by 
consent  of  both  parties.  If  one  is  under  compulsion,  it  is  no  contract, 
no  traffic.  The  transaction  disclosed  by  the  verdict,  is  only  the  mean^ 
of  saving  property  from  a  total  loss.  The  owners  were  not  obliged 
to  abandon,  as  the  gentleman  contends,  property  thus  put  in  jeopardy 
The  master  and  supercargo  were  not  free  agents.  They  were  not 
obliged  to  take  bills,  which  they  knew  would  not  be  paid.  If  I  could 
have  had  a  doubt  upon  this  case  it  would  have  been  removed  by  the 
decisions  of  the  circuit  courts  of  the  United  States.  In  a  case  before 
one  of  your  Honors,'  in  Baltimore,  a  vessel  had  brought  home  from 
the  French  West  Indies,  a  cargo  of  the  produce  of  those  islands,  after 
having  been  compelled  to  go  in  and  sell  her  outward  cargo;  and  it 
was  decided,  that  the  case  was  not  within  this  act  of  Congress.  .\ 
similar  case  is  understood  to  have  been  decided  by  another  of  ycnr 
Honors,'  in  New  York.  If  those  cases  were  not  within  the  law  I  am 
warranted  in  saying,  this  is  not. 

Those  decisions  produced  the  third  section  of  the  act  of  1800.  whicii 
the  gentleman  has  cited,  and  which  was  introduced,  to  shut  the  door 
that  had  been  left  open.  It  was  perceived,  that  the  law,  as  it  stooii 
before,  would  give  an  opportunity  of  fraud.  The  third  section  was 
enacted  to  take  away  the  temptation ;  because,  although  there  might 
be  cases,  clear  of  fraud,  it  was  thought  best  to  sacrifice  these  par- 
ticular cases,  that  fraud  might  be  prevented  in  others.  This  section. 
therefore,  has  given  a  sanction  to  the  decisions  of  the  circuit  courts 


1  J'.idgc  Washington. 

'  JiiiIrc  Patkr.son,  in  September,  1799,  in  the  case  of  Richardson  and  nther>, 
cited  in  1  Caines'  Rep.,  p.  M. 


HALLET  &  BOWNE  v.  JENKS  ■y:>i 

Key.  in  reply. -It  is  clear,  that  there  are  two  distinct  prohibitions 
in  the  act.  The  two  parts  of  the  section  are  connected  by  the  dis- 
junctive "or,"  and  not  by  the  copulative  "and."  This  is  rendered 
still  more  evident,  by  the  form  of  the  condition  of  the  bond  described 
in  'he  second  section. 

v\^henever  you  rely  on  the  necessity  of  the  case,  to  justify  your  acts 
you  must  not  go  beyond  the  necessity.  All  beyond  is  voluntarv  In 
this  case.  It  might  go  to  the  landing,  and  to  the  seizire  of  part  but 
not  to  the  sale  of  the  residue.  The  probability  of  loss  is  not  neces- 
sity. If  they  took  produce,  it  was  only  to  avoid  a  greater  loss  It 
was  not  an  inevitable  necessity.  Another  fact  shows  that  it  was 
trading;  not  merely  taking  on  board,  to  bring  home,  property  which 
they  wtre  compelled  to  receive.  She  was  not  coming  home  with  the 
property,  when  she  was  captured,  but  going  on  a  trading  voyage.  And 
the  French  pass  states  that  she  came  to  Cape  Frangois  for  trade  and 
business.  The  intention  of  the  act  was  to  prevent  all  trading  and 
intercourse  with  France  or  her  dependencies. 

In  the  case  at  Baltimore,  before  his  Honor  Judge  Washi.xgton 
the  vessel  returned  directly  home  to  Baltimore,  with  produce,  which 
>he  had  been  compelled  to  take  or  abandon. 

Afasott.  on  the  same  side.— It  is  said,  there  must  be  a  preexisting 
intention  to  go  to  a  French  port.  If  the  sloop  had  arrived  safe  at  the 
Havana,  and  been  there  sold  to  an  agent  of  the  French  Government 
It  IS  clear,  she  would  have  been  liable  to  forfeiture.  So,  if  the  French 
agent,  who  signed  the  passport,  had  freighted  the  vessel.  These  cases 
show  that  a  preexisting  intention  is  not  necessary.  The  constniction 
contended  for  would,  indeed,  open  a  wide  door  to  fraud,  as  the  gen- 
tleman has  contended.  It  would  only  be  necessnry  to  start  a  pla-^'. 
in  sight  of  the  port,  and  then  go  in  to  stop  the  leak,' and  the  whole  law 
is  evaded. 


March  6,  1805.  Marshall,  Ch.  J.,  delivered  the  opinion  of  the 
court,  to  the  following  effect :— The  court  is  of  opinion,  according  to 
the  best  consideration  they  have  been  able  to  give  the  subject,  that 
this  case  is  not  within  the  act  of  Congress  of  1798.  usually  called  the 
non-intercourse  law. 

It  is  contended  by  the  counsel  for  the  defendant,  that  the  circum- 
stances stated  in  the  special  verdict,  do  not  show  an  absolute  necessity 


222 


JUDGMENTS  OF  THE  SUPREME  COURT 


\ 


for  the  trading  therein  described.  And  it  is  said,  the  plaintiflE  might 
have  abandoned  the  property,  and  sought  redress  of  his  government ; 
and  that  it  was  his  duty  to  do  so,  rather  than  violate  the  laws  of  his 
country.  But  the  court  is  of  opinion,  that  the  act  of  Congress  did  not 
impose  such  terms  upon  a  person  who  was  forced  by  stress  of  weather 
to  enter  a  French  port,  and  land  his  cargo,  and  was  prevented  by  the 
public  officers  of  that  port  to  relade  and  carry  it  away.  Even  if  an 
actual  and  general  war  had  existed  between  this  country  and  France, 
and  the  plaintiff  had  been  driven  into  a  French  port,  a  part  of  his 
carsjo  seized,  and  he  had  been  permitted  by  the  officers  of  the  port 
to  sell  the  residue,  and  purchase  a  new  cargo,  I  am  of  opinion,  that 
it  would  not  have  been  deemed  such  a  traffic  with  the  enemy,  as  would 
vitiate  the  policy  upon  such  new  cargo.  The  terms  of  the  act  of  Con- 
gress seem  to  imply  an  intentional  offense  on  the  part  of  the  owners. 

The  case  put,  of  a  French  agent  going  to  the  Havana,  and  there 
purchasing  the  cargo  for  the  use  of  the  French  Government,  under 
a  preconcert  with  the  owners,  would  certainly  be  an  offense  against 
the  law ;  but  when  there  is  no  such  intention ;  when  the  vessel  has  been 
absolutely  forced,  by  stress  of  weather,  to  go  into  a  French  port,  and 
land  her  cargo ;  when  part  has  been  seized  for  the  use  of  the  Govern- 
ment of  France,  and  the  master  has  been  forbidden  by  the  public 
officers  of  the  port  to  relade  the  residue,  and  to  sell  it  for  any  thins; 
valuable,  except  the  produce  of  the  country:  the  mere  taking  away 
such  produce,  can  not  be  deemed  such  a  tr:.ffic  as  is  contemplated  by 
the  act  of  Congress. 

Judgment  affirmed,  with  costs. ^ 


S.ANDS  v.  KNOX" 
Non-intercourse  act 

The  non-intercourse  act  of  June  1.1,  1798,''  did  not  impose  any  disability  upon 
vessels  of  the  United  States,  sold  bona  fide  to  forciRners,  residing  out  of 
the  United  States,  during  the  existence  of  tnat  act. 

Error  to  the  Court  for  the  Trial  of  Impeachments  and  the  Cor- 
rection of  Ernjrs.  in  the  State  of  New  York. 


1  See  the  opinion  of  the  supreme  court  of  Now  Nork,  in  this  ca<'',  m  1 
Caines'  Rep.  64,  and  that  of  the  High  Court  for  the  Trial  of  Impeachments  atnl 
Correction  of  Frrnrs.  in  the  S.ate  of  Ww  York,  delivered  by  Lansing,  Chancel- 
lor, in  1  Caines'  Cases  in  Error,  p.  43. 

'.3  Cranch,  499;  February  term,  1806. 

'  Sufra.  p.  S&. 


SANDS  T.  KNOX 


223 


Thomas  Knox  administrator,  with  the  will  annexed,  of  Raapzat 
leyleger.  a  subject  of  the  King  of  Denmark,  brought  an  action  o 

trespass  z.  et  arrms.  in  the  supreme  court  of  judicature  of  th  Stale 
L  o7  I      '?T)  J"'"^  ''^^"'^^-  ^°"-^-  -'  '^-  custom    for  th 

/^rj;,  wu:  h^e:tr^^  ^^'^-^  ^^  ^^^^-'-^  ^  -^--^  -"^d  the 
The  defendant  Sands,  pleaded  in  justification,  that  he  was  collector 

.\ox ember,  1798,  the  sa.d  schooner,  then  being  called  the  Juno    was 
owned  by  a  person  resident  within  the  United  States,  at  M  ddl Iwn 
m  Connecticut,  and  cleared  for  a  foreign  voyage,  ^■^     from  MWdT' 
town  to  the  island  of  St.  Croix,  a  bond^ing  ^v«,  to' the  use  of  the" 
bnucd  States,  as  directed  by  the  statute,  with 'condition  thahfv^s 
se  should  not.  during  her  intended  voyage,  or  before  her  retun^  :,  ht 
he  United  States,  proceed,  or  be  carried,  directly  or  indirTcUr  o 
any  port  or  place  w.thin  the  territory  of  the  French  Republic   or  the 
dependences  thereof,  or  any  place  in  the  West  Indies,  or  ds'ewhere 
under  the  acknowledged  government  of  France,  unles    by  ^s    of 
-ather.  or  want  of  provisions,  or  by  actual  force  or  violence     o  be 
uly  proved  and  manifested  before  the  acquittance  of  such  bond  and 

that  such  vessel  was  not,  and  should  not  be.  employed,  during  he 
.d  intended  voyage,  or  before  her  return  as  aforesaid,   n  an;  traffi 

o    commerce  with,  or  for,  any  person  resident  within  the  terrftory  o 
n    he's" h    'f'n  "  'T  °'  r^L^'^P^"^---  'hereof.    That  afterwards 

carne<l   from   M.ddletown  to  the  island  of   St.   Croix,  in  the  West 

Indies   and  from  thence,  before  he^  return  within  the  United  State 

he  acknowledged  government  of  France,  without  being  obliged  to  do 

del     ";  "\  ""''"'  °^  """^  °'  P^°-^'°"^-  -  -^-I  force  and 
-  lence,  whereby,  and  according  to  the  form  of  the  statute   the  s!. id 

'herco  ,  tiie  defendant.  I.emg  collector,  etc.,  on  the  1st  of  Tulv    1799 
arrested,  entered  and  took  possession  of  the  said  vess      an    'c  r^' 

m  the  declaration,  and  as  it  was  lawful  for  him  to  do. 

lee    r'  1"!  ; '"  ^''  ^^P"C'''t'°"-  ^^^"'itted  that  the  defendant  was  col- 
lector, etc.,  that  at  the  time  she  sailed  from  Middletown  for  St   Croix 


224 


JUDGMENTS  OF  THE  SUPREME  COURT 


she  was  owned  by  a  p  'son  then  resident  in  the  United  States;  and 
that  a  bond  was  given  a j  stated  in  the  plea ;  but  alleged,  that  she  sailed 
directly  from  Middletown  to  St.  Croix,  where  she  arrived  on  the  1st 
of  February,  1799.  the  said  island  of  St.  Croix  then  and  yet  being 
under  the  government  of  the  King  of  Denmark.  That  one  Josiah 
Savage,  then  and  there  being  the  owner  and  possessor  of  the  said  ves- 
sel, sold  her,  for  a  valuable  consideration,  at  St.  Croix,  to  the  said 
Raapzat  Heyleger,  who  was  then,  and  until  his  death  continued  to  be, 
a  subject  of  the  King  of  Denmark,  and  resident  at  St.  Croix,  who,  on 
the  1st  of  March  following,  sent  the  said  vessel,  on  his  own  account, 
and  for  his  own  benefit,  on  a  voyage  from  Port  de  Paix  to  St.  Croix, 
without  that,  that  she  was  at  any  other  time  carried,  etc. 

To  this  replication,  there  was  a  general  demurrer  and  joinder,  and 
judgment  for  the  plaintiff,  which,  upon  a  writ  of  error  to  the  court 
for  the  trial  of  impeachments  and  correction  of  errors,  in  the  State  of 
New  York,  was  affirmed.  The  defendant  now  brought  his  writ  of 
error  to  this  court,  under  the  25th  section  of  the  judiciary  act  of  the 
United  States.     (1  U.  S.  Stat.  85.) 

The  only  question  which  could  be  made  in  this  court,  was  upon  the 
construction  of  the  act  of  Congress,  of  June  13,  1798  (1  U.  S.  Stat. 
565),  commonly  called  the  non-intercourse  act;  the  first  section  of 
which  is  in  these  words:  "That  no  ship  or  vessel,  owned,  hired  or 
employed,  wholly  or  in  part,  by  any  person  resident  within  the  United 
States,  and  which  shall  depart  therefrom,  after  the  1st  day  of  JuK 
next,  shall  be  allowed  to  proceed,  directly,  or  from  any  intermediate 
port  or  place,  to  any  port  or  place  within  the  territory  '  the  French 
Republic,  or  the  dependencies  thereof,  or  to  any  place  in  the  West 
Indies,  or  elsewhere,  under  the  acknowledged  government  of  France, 
or  shall  be  employed  in  any  traffic  or  commerce  with  or  for  any  person, 
resident  within  the  jurisdiction  or  under  the  authority  of  the  French 
Republic.  And  if  any  ship  or  vessel,  in  any  voyage  thereafter  com- 
mencing, and  before  her  return  within  the  United  States,  shall  be 
voluntarily  carried,  or  suffered  to  proceed,  to  any  French  port  or  place 
as  aforesaid,  or  shall  be  employed  as  aforesaid,  contrary  to  the  intent 
hereof,  everv  such  ship  or  vessel,  together  with  her  cargo,  shall  be 
forfeited,  and  shall  accrue,  the  one-hilf  to  the  use  of  the  United 
States,  and  the  other  half  to  the  use  '^f  any  person  or  persons,  citizens 
of  the  United  St-tes,  who  will  infonn  and  prosecute  for  the  same: 
and  shall  be  liaV  e  to  be  seized,  prosecuted  aiid  condemned,  in  any 


SANDS  V.  KNOX 


225 


circuit  or  district  court  of  the  United  States,  which  shall  be  holden 
within  and  for  the  district  where  the  seizure  shall  be  made." 

The  condition  of  the  bond  stated  in  the  plea,  corresponded  exactly 
with  that  required  by  the  second  section  of  the  act.  The  seventieth 
section  of  the  act  of  2d  of  March.  1799  (1  U.  S.  Stat.  678).  makes  it 
the  duty  of  the  several  officers  of  the  customs,  to  seize  any  vessel 
liable  to  seizure,  under  that  or  any  other  act  of  Congress  respecting 
the  revenue. 


C.  Lee,  for  the  plaintiff  in  error.— The  question  is.  whether  the  act 
of  Congress  does  not  impose  a  disability  upon  the  vessel  itself? 

This  vessel  was  clearly  within  the  literal  prohibition  of  the  act. 
She  was  "owned  wholly  by  a  person  resident  within  the  United 
States."  She  did  "depart  therefrom,  after  the  1st  day  of  July  (then) 
iie.xt."  She  did  "proceed  from  an  intermediate  port  or  place,  to  a 
place  in  the  West  Indies,  under  the  acknowledged  governmOTt  of 
France."  She  was  also  a  vessel  which,  "in  a  voyage  thereafter  com- 
mencmg,  and  before  her  return  within  the  United  States,"  was  "vol- 
untarily carried,  or  suffered  to  proceed,  to  a  French  port."  She  had 
therefore,  done  and  suffered  every  act  which,  according  to  the  letter 
of  the  law,  rendered  her  liable  to  forfeiture,  seizure  and  condemna- 
tion. 

It  is  true,  that  the  decision  of  this  court,  in  the  case  of  the  Champ- 
ing Betsy,  2  Cr.  115,  seems,  at  first  view,  to  be  against  us.  But  the 
present  question  was  not  made,  and  could  not  arise,  in  that  case, 
because  that  vessel  had  not  been  to  a  French  port,  nor  had  she  re^ 
turned  from  a  French  port  to  the  United  States.  If  such  a  trade 
as  the  present  case  presents  were  to  be  permitted,  the  whole  object  of 
the  non-intercourse  act  would  be  frustrated.  A  vessel  of  the  United 
States  may,  according  to  the  judgment  in  the  case  of  the  Charming 
Betsy,  be  sold  and  transferred  to  a  Dane,  and  he  may  trade  with  her 
as  he  pleases ;  but  we  say,  it  is  with  this  piDviso,  that  he  does  not 
send  her  from  a  French  port  to  the  United  States.  He  takes  the 
vessel  with  that  restriction.  If  he  trades  to  the  United  States,  he  is 
bound  to  know  and  respect  their  laws.  The  intention  of  the  law  was 
not  only  to  prevent  American  citizens,  but  American  vessels,  from 
carrying  on  an  intercourse  with  French  ports. 

The  case  of  the  Charming  Betsy  was  under  the  act  of  February' 
1800;  but  the  present  case  arises  under  that  o    1798,  which  is  very 


226 


JUDGMENTS  OF  THE  SUPREME  COURT 


different  in  many  respects.  The  opinion  in  that  case,  so  far  as  it 
was  not  upon  points  necessarily  before  the  court,  is  open  to  examina- 
tion. Neither  the  words  of  the  law,  nor  the  form  of  the  bond,  make 
any  exception  of  the  case  of  the  sale  and  transfer  of  the  vessel,  be- 
fore her  return.  If,  therefore,  a  sale  is  mnle,  it  must  be  subject  to 
the  terms  of  the  law;  and  although  the  vv^sel  may  not  be  liable  to 
seizure  upon  the  high  seas,  yet  upon  her  return  to  the  United  States. 
it  became  the  duty  of  the  custom-house  officer  to  seize  her.  The  law 
ought  to  be  so  construed  as  to  carry  into  effect  the  object  intended. 
That  object  was,  to  cut  off  all  intercourse  with  France,  and  by  that 
means  compel  her  to  do  justice  to  the  United  States.  But  if  this 
provision  of  the  law  is  to  be  so  easily  eluded,  France  will  be  in  a 
better  situation  than  before,  for  she  will  receive  her  usual  supplies, 
and  we  shall  be  weakened  by  the  loss  of  the  carrying  trade. 

Bayard,  contra,  was  stopped  by  the  court. 

Marshall,  Qi.  J. — If  the  question  is  not  involved,  whether  prob- 
able cause  will  justify  the  seizure  and  detention;  if  there  are  no 
facts  in  the  pleadings  which  show  a  ground  to  suspect  that  there 
was  no  bona  fide  sale  and  transfer  of  the  vessel,  the  court  does  not 
wish  to  hear  any  argument  on  the  part  of  the  defendant  in  error. 
It  considers  the  point  as  settled  by  the  opinion  given  in  the  case  of 
the  Charming  Betsy,  with  which  opinion  the  court  is  well  satisfied. 
The  law  did  not  intend  to  affect  the  sale  of  vessels  of  the  United 
States,  or  to  impose  any  disability  on  the  vessel,  after  a  bona  fide 
sale  and  transfer  to  a  foreigner. 

Judgment  afifirmed. 


Judgments  of  the  Court  of  Claims  of  the  United  States 

WILLIAM  GRAY,  Administrator,  v.  THE  UNITED 

STATES' 

[No.  7,  French  Spoliations.     Decided  May  17,  1886) 

On  the  Proofs 

The  treaties  of  1778  '  bind  America  and  France  in  reciprocal  obligations  looking 
to  independent  sovereignty  for  the  one  and  certain  exclusive  privi- 
leges for  the  other.  Subsequent  to  the  peace  of  1782  the  French 
revolutionary  government  charges  violations  of  the  treaty  in  not 
accordmg  to  France  her  exclusive  privileges,  and  on  the  publication 
of  the  Jay  treaty,  1795,  breaks  off  diplomatic  relations.  Between  1791 
and  the  treaty  of  1800  ^  France  is  guilty  of  depredations  on  .American 
commerce  in  violation  both  of  treaties  and  the  law  of  nations.  A 
state  of  partial,  maritime  war  exists.  In  1800,  negotiations  being  re- 
newed, the  French  Government  demands  restoration  of  the  exclusive 
privileges  r,nd  indemnity  for  their  withdrawal.  The  American  offers 
8,000,000  francs  to  be  released,  but  insists  on  indemnity  for  its  citi- 
zens. Finally  the  treaty  of  1800  is  ratified  with  both  pretensions 
stricken  out,  France  renouncing  her  claim  for  the  treaty  privileges 
and  America  her  claim  for  the  wrongs  done  her  ritizens.  In  1885 
an  act  is  passed  authorizing  American  citizens  having  "valid  claims 
to  indemnity  upon  the  French  Government  arising  out  of  illegal  cap- 
tures, detentions,  sci::ures,  condemnations,  and  confiscations,"  prior 
to  the  treaty  of  1800,  to  bring  suit,  and  directing  this  court  to  "d"- 
termine  the  validity  and  amount"  thereof. 
I.  The  power  of  this  court  to  grant  redress  in  the  French  spoliation  cases 
is  necessarily  limited  by  the  terms  of  the  Act  of  January  20,  1885  «  (23 
Stat.  L.  28>!),  conferring  jurisdiction. 
II.  The  act  casts  upon  the  courts  the  duty  of  determining  judicially  both 
that  the  French  seizures  were  -lU.-gol"  and  the  American  claims  are 
"valid." 

HI.  The  treaties  of  alliance  and  commerce  with  France  1778,  having  been 
concluded  upon  the  same  day  and  the  result  of  the  same  negotiation 
and  signed  by  the  same  plcnipotcntiane>,  are  in  diplomatic  effect  one 
instrument. 

IV.  The  treaty  of   commerce  assured   to   France  exclusive   privileges;   t'  ■> 
"■'^*'y  °f  alliance  cast  upon  the  American  Government  the  obligation 

'  Court  of  Qaims  Reports,  vol.  21,  page  .^40.       'Infra,  pp.  441,  466. 


'Infra,  p.  48! 


'  iui'ra,  p.  92. 


Tl 


#■'        I     ' 


228 


VI. 


VII. 


VIII. 


IX. 


X. 


XI. 


XII. 


XII 


XIV. 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  maintaining  French  possessions  in  America;  the  Jay  treaty  of  1795, 
granting  the  same  commercial  privileges  to  England,  necessarily 
conflicted  with  the  French  treaties. 

A  judicial  tribunal  must  treat  the  fa<-ts  of  a  former  international  dis- 
pute only  as  they  affect  private  rights.  Its  decision  can  not  properly  be 
regarded  as  a  reflection  upon  the  treaty-making  power. 

A  seizure  upon  the  high  seas  of  an  American  vessel  bound  for  a  neutral 
port  on  the  alleged  ground  of  her  having  violated  French  regulation'. 
"concerning  the  navigation  of  neutrals,"  was  an  illegal  seizure,  and 
the  claims  resulting  therefrom  a  valid  claim,  for  which  the  American 
Government  was  morally  bound  to  demand  redress. 

Concerning  the  question  whether  war  existed  between  .\merica  and 
France  prior  to  the  treaty  of  1800  and  the  nature  and  extent  thereof, 
the  judicial  department  must  follow  the  political. 

The  acts  of  1798  and  1799,  the  declarations  and  actions  of  the  Execu 
tive,  and  the  conduct  and  assurances  of  the  two  Governments  conclu- 
sively show  that  while  there  was  a  limited  maritime  war  (in  its 
nature  a  prolonged  series  of  reprisals),  nevertheless  iio  state  m' 
pubHc  general  war  existed,  such  as  would  abrogate  treaties,  sti- 
pend private  rights,  or  authorize  indiscriminate  seizures  and  con- 
demnations. 

The  claims  which  the   French  Government  renounced  by  the  treaty  "i 
1800  were  national ;  those  which  our  Government  renounced  were  in- 
dividual; and  the  reciprocal  renunciation  constituted  the  bargain  ci 
fected  by  the  treaty  of  1800. 

All  claims  urged  by  one  nation  upon  another  are  technically  nationa': 
but  there  is  a  distinction  between  claims  founded  upon  injury  to  tlic 
whole  people  and  those  founded   upon   injury  to   particular  citizen- 

The  bargain  whereby  I'lis  Government  ihtained  the  renunciation  of  tin- 
French  claims  against  itself  and  the  reiinijuishnient  of  its  obligation- 
under  the  treaty  of  1778,  brings  these  cases  within  the  provision  of 
the  Constitution,  that  '"private  pr.pcrTv  shall  not  be  taken  for  puhli, 
use  without  jit-i  compensation  " 

The  claims  renounced  by  the  treaty 
for  wrong  and  injury,  the  debt- 
were  obligations  m  t!  ■■  nature 
restitution  had  been     rdered    ■      tie 
latter  treaty  doe-  no'  extend  tr^  ttt 

Tlie  attempt  of  tht-      rcn-"  '    -vrrrmient  tr    ^-sxalxtr    ly  its    -wn  dccrct- 
the  conduct  ol  -Trntr-l    J«i'jtiii,i.i!irai  \inm  rae  3isr.  seas  was  contrn; 
to   the   law   of    -sior^    ant     yarn:   ant    sc-    «aaire  ot   an    .-\incricaii 
vessel  or   the  allered   jrrmm:   rfex  he-   "-ju-  ^^uipaac"  was  not    :: 
the  form  prescrii-^d  Iv-    ?rmc-    aw  ii«^    ueijpil 

A  citizen  must  extiaast  m-  '!-rT~rr  ir  -asp  narrs  of  a  lorciKu  powc- 
befo.e  he  can  c.     -apsB;  m-  oter  Gingginngnt  i t  diplomauc  redreJs. 


two  were  -mquidated  dem:iiid- 
-«*sas>  tor  .  the  treaty  ■  '"^O,' 
saaci  -  for  captures  as  to  wiiicli 
ctiascL-    ■  :  -?rizrs.     Therefore  thr 


GRAY  V.  UNITED  STATES 


229 


hut  th-  decmon  of  the  foreign  tribunal  is  not  final,  heing  the  very 
begmnmg  of  the  international  controversy:  and  the  doctrine  i,  appli- 
cable^only  where  the  courts  are  open  an>i  the  citizen   free  to  seek 

""''''  '"1!  Tfr"^."'  '*"';■■"  ^"1"  """  "^^'  «'^<^  "^  *^<=  ^■-•-^  -nounced 
of  1800  '"t*"'"'°"»'  P°"nt  of  view,  extinguished  by  the  treaty 

KVU.  Whether  the  M,„f  .,/.,  28.  ,-98,   ...at.  L.  561).  abrogated  the  treaty 
of   1778  „  an  immaterial  qne^t,  n  here,  inasmuch  as  the  claims  rest 
on  the  violation  of  neutral  right,  under  the  law  of  nations 
XVIII,  The  French  Spotuuio.,  Claims  ./,  r  1,S85  =  (23  Stat.  L,  U.  p  283)    while 
requ.nng  th,s  court  to  determi,,,.  the  ^rescn,  ou-nership-  of  acTaim 
does  not  require  it  .0  act  as  a  court  of  probate  and  settle  estates' 

ltrr2.°^"'-  "^""  -  -'-  ->•  '^  -^'"--^  ^y  - 

The  Reporters'  statement  of  the  case: 

This  i.  the  leading  French  spoliation  case,  |..,t  at  the  time  when  it 
was  brought  before  the  court  a  number  of  cases  were  presented  by 
the  vanou.  counsel,  whose  names  are  given  below,  and  the  general 
auen,on  of  the  Government's  liability,  and  the  general  principles  more 
or  less  applicable  to  all  of  these  cases,  were  discussed  at  great  length 

The  decision  was  understood  to  be  final  as  to  this  case,  but  no  order 
was  entered  at  the  time  of  its  rendition. 

A/r.  milmm  Gray  for  the  claimant,  William  Gray,  administrator. 

Mr.  WUliam  E.  Earle  U-ith  whom  was  Mr.  Samuel  Shellabaraer) 
for  the  claimant.  F.  K.  Carey. 

Mr.  Fisher  Ames  for  the  claimant.  Fisher  Ames,  administrator. 
Mr.  Leonard  Myers  for  various  claimants  residing  m  Philadelphia. 
Mr.  Laurence  Lewis,  Jr.,  for  the  same  and  other  parties. 
Mr.  J,  Hubley  Ashton  for  the  city  of  Philadelphia. 
Mr.  Benjamin  IVilson  for  the  defendants. 
Davis,  ].,  delivered  the  opinion  of  the  court  : 

This  claim,  one  of  the  class  popularly  called  "French  spoliations," 
springs  from  the  policy  of  the  French  revolutionar>-  government  be- 


Supra,  p.  5*5. 


r.   Q^ 


issfssat,:'  -.  -'v«r^'33»,t'.j> 


230 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


f 


twcen  the  execution  of  King  Louis  XVI  and  the  year  1801,  a  policy 
which  led  to  the  detention,  seizure,  condemnation,  and  confiscation 
of  our  merchant  vessels  peacefully  pursuing  legitimate  voyages  upon 
the  high  seas.  Over  ninety  years  have  these  claims  been  the  subject 
of  discussion  and  agitation,  first  between  the  two  nations,  and  then 
between  the  individuals  injured  and  the  Government  of  the  United 
States.  Prolonged  and  heated  negotiation  resulted  in  the  treaty  of 
ISOO,  by  which,  it  is  urged  on  behalf  of  the  claimants,  their  rights 
were  surrendered  to  France  for  a  consideration  valuable  to  this  Gov- 
ernment. The  claims  being  valid  obligations  admitted  by  the  French 
Government,  they  contend  that  the  United  States,  through  this  agree- 
ment, in  which  demands  of  the  one  nation  were  set  off  against  those 
of  the  other,  assumed  as  against  their  citizens  these  obligations  and 
should  pay  them.  This  position  is  denied  by  the  Government,  which 
in  addition  presents  other  defenses  based  upon  subsequent  transactions 
between  the  two  countries,  urging  that  thereby  were  destroyed  any 
beneficial  rights  possibly  vested  in  the  claimants,  if  their  contention 
as  to  the  treaty  of  1800  be  correct. 

The  act  scndmg  the  claims  to  this  court,  while  the  third  that  has 
passed  both  Houses  of  Congress,  is  the  first  that  has  received  the 
approval  of  a  President,  as  one  was  vetoed  by  President  Polk,  another 
by  President  Pierce,  while  this,  the  third,  was  signed  by  President 
Arthur. 

Whatever  the  rights  of  the  claimants,  they  are  without  remedy  other 
than  that  which  Congress  may  have  seen  fit  to  give  them;  and  our 
power  to  grant  redress,  be  our  opinion  as  to  the  justice  of  their  claims 
what  it  may,  is  limited  by  the  terms  of  the  remedial  statute.  The 
force  and  effect  of  the  act,  by  virtue  of  which  the  claimants  appear 
at  this  bar  seeking  relief,  must  then  be  examined  at  the  threshold  of 
the  discussion.  The  act  authorizes  "citizens  of  the  United  States  or 
their  legal  representatives,"  having  "valid  claims  to  indemnity  ui>on 
the  French  Government  arising  out  of  illegal  captures,  detentions, 
seizures,  condemnations,  and  confiscations,"  prior  to  the  ratification 
of  the  convention  of  1800  with  France,  to  apply  here  within  a  time 
limited  (§1).  that  (§  ^)  this  court  may  "examine  ant!  determine  the 
validity  and  amount"  of  their  claims,  the  present  ownership,  and.  if 
owned  by  an  assignee,  certain  details  in  regard  thereto.  The  act  ex- 
cludes from  its  benefits  claims  embraced  in  certain  conventions  with 
France  and  Spain,  concluded  in  1803.  1819.  and  1831.  and  with  pro- 


GRAV  V.  UNITED  STATES 


231 


visions  as  to  rules  of  court,  defense  of  the  United  States,  evidence 
and  other  matters  not  important  for  our  immediate  purpose,  directs 
this  court,  as  to  the  claims  thus  placed  within  our  jurisdiction,  to 
report  to  Congress  the  first  Monday  of  each  December  the  facts  found 
by  us  and  our  conclusions,  which  are  to  be  taken,  both  as  to  law  and 
facts,  as  advisory  and  not  conclusive  upon  either  party,  the  claimants 
or  the  Government. 

So  peculiar  a  jurisdiction  was  probably  never  before  conferred  upon 
a  strictly  judicial  tribunal.  The  rights  of  the  claimants,  if  any  exist. 
arise  from  the  acts  of  the  political  branch  of  the  Government  done 
in  the  protection  and  aid  of  the  nation.  For  such  rights  there  can 
be  no  remedy  other  than  that  granted  by  the  legislature;  in  this  in- 
stance the  legislature  has  elected  to  transmit  to  the  judiciary,  under 
certain  restrictions,  the  examination  of  the  claimants'  demands,  with 
the  proviso  that  the  conclusion  reached  in  this  forum  shall  not  be 
finally  binding  upon  either  party,  but  that  the  defendants,  as  well  as 
the  claimants,  have  reserved  to  them  an  appeal,  not  in  the  regular  line 
of  judicial  procedure  to  the  Supreme  Court  of  the  United  States, 
but  back  again  to  that  body,  from  which  alone  any  remedy  can  come 
to  the  citizen  for  wrongs  done  him  by  his  Government. 

The  reason  for  this  peculiar  grant  of  remedy  is  found  in  the  nature 
of  the  claims,  which  spring  from  international  controversies  of  the 
gravest  character  intimately  entwined  with  the  history  of  our  struggle 
for  independence;  also  in  the  age  of  the  claims;  and,  lastly,  in  the 
absolutely  indeterminate  amount  of  financial  responsibility  which  will 
be  thrown  upon  the  Government  should  the  claims  be  found  to  exist 
as  valid  obligations  due  from  the  United  States  to  their  citizens.  Good 
or  bad.  not  one  of  these  claims  is  enforceable  but  by  the  consent  of 
the  Congress,  and  the  Congress  can  affix  to  that  consent  such  condi- 
tion as  in  their  wisdom  seems  just  and  for  the  best  interests  of  the 
Republic  The  remedy  now  granted  is  an  examination  and  advisory 
rejxirt  by  the  judiciary,  to  be  followed  by  a  decision  by  the  legislative 
branch  of  the  Government. 

It  has  been  said  that  the  validity  of  the  claims  as  a  class  is  admitted 
by  the  .ict.  and  this  court  should  confine  the  examination  to  each  in- 
dividual claim  for  the  purpose  only  of  determining  whether  it  falls 
within  the  class.  This  is  understood  to  be  in  effect  the  argument  on 
t>ehalf  of  some  of  the  claimants.  Our  labor  ,nnd  resp<insibility  would 
tf  preatly  lightened  could  we  agree  with  this  proposition,  hut  the  act 


232 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


of  Congress  seems  clearly  to  negative  the  contention,  and  to  throw 
upon  us  the  duty  of  investigating  the  validity  of  these  claims  against 
France  and  the  assumption  of  them  by  the  United  States.  It  requires 
us  to  examine,  not  claims  in  a  specified  category  or  known  by  a  generic 
name,  not  even  "claims"  simply,  but  "valid"  claims  against  France, 
and  valid  claims  arising  not  merely  from  captures,  detentions,  seizures, 
condemnations,  and  confiscations,  but  from  acts  of  this  nature  which 
were  "illegal."  The  validity  of  the  claims,  as  against  France,  is  the 
very  first  condition  imposed  by  the  legislature  upon  the  grant  of 
remedy.  The  claims  must  have  been  "valid"  obligations  existing  at  the 
time  and  which  this  Government  had  the  right  to  enforce  diplomatically 
before  they  come  within  the  purport  of  the  statute.  To  grant  as  cor- 
rect the  contention  that  we  are  to  examine  in  each  case  whether,  and 
only  whether,  the  seized  or  detained  vessel  had  violated  the  law  of 
nations  or  the  treaties — as,  for  illustration,  drawn  from  the  argument, 
whether  she  carried  contraband  of  war,  or  attempted  to  break  an  actual 
blockade,  or  failed  to  carry  proper  papers — if  we  are  to  examine  only 
into  this,  then  eflFect  is  perhaps  given  to  the  word  "illegal,"  found  in  the 
statute  defining  the  nature  of  the  acts  from  which  the  claims  arise, 
but  the  word  "valid,"  of  equal  if  not  superior  force,  is  entirely  ignore<i. 

Clearly  Congress  expects  from  us  an  opinion  as  to  the  validity  of 
claims  of  this  class  as  against  France,  and  the  third  section  of  the  act. 
which  requires  us  to  receive  "historic  and  documentary  evidence,"  "to 
decide  upon  the  validity  of  said  claims  according  to  the  rules  of  law, 
municipal  and  international,  and  the  treaties  of  the  United  States  ap- 
plicable to  the  same,"  and  to  report  "all  such  conclusions  of  fact  an! 
law  as  in  four]  judgment  may  affect  the  liability  of  th-  United  States 
therefor,"  is  not  only  confirmatory  of  this  conclusion,  but  obliges  n« 
to  go  further  and  to  examine  into  the  resultant  liability  claimed  to 
exist  in  the  Government  of  the  United  States  to  compensate  the  claim- 
ants for  the  injuries  alleged  to  have  been  sustained  at  the  hands  of 
the  French  Republic.  This  involves  an  examination  of  the  history  of 
the  relations  between  the  two  countries  from  1777,  when  negotiations 
for  the  treaties  of  alliance  and  commerce  began,  as  the  whole  conten- 
tion starts  with  the  treaties  of  177R  with  France,  which  came  to  us 
during  the  darkest  hours  of  the  stnigtjle  for  independence,  and  when 
we  were  hoping  against  hi>pc  for  the  aid  which  there  was  no  prns()cct 
of  receiving. 

Burgoyne  had  capitulated.  Howe  had  been  driven  from  New  Jersey, 


GRAY  V.  UNITED  STATES 


233 


and,  after  the  drawn  battle  of  Germantown,  was  shut  up  in  Philadel- 
phia, where  the  ease  and  luxury  of  a  city  camp  were  but  occasionally 
.•nterrupted  by  an  excursion  against  the  enemy  on  land  or  an  encounter 
upon  the  river.  Curiously  enough,  at  the  end  of  a  successful  cam- 
paign, the  American  cause  was,  barring  the  indomitable  spirit  of  the 
patriots,  in  the  direst  straits. 

Gates,  excited  by  his  success  at  the  north  and  become  the  president 
of  the  executive  board  of  war,  had  broken  with  Washington  and  had 
used  his  influence  successfully  in  securing  the  appointment  as  inspector- 
general,  against   Washington's  earnest  protest,  of  a  man   who  had 
openly  defied  the  commander-in-chief.     Washington's  army  of  less 
than  nine  thousand  men.  lying  at  Valley  Forge,  was  violently  assaile.1 
by  the  State  of  Pennsylvania  for  not  prosecuting  an  active  winter 
campaign,  while  even  in  Congress,  to  which  the  remonstrance  of  the 
Spates  council  and  assembly  had  been  addressed,  there  was  deep  dis 
content  as  to  the  policy  of  the  commander-in-chief  and  sharp  criticism 
upon  his  conduct     In  Philadelphia  the  British,  lodged  in  comfortable 
houses,  were  surrounded  by  every  luxury  which  a  full  purse  and  com- 
munication with  the  outer  world  could  afford ;  while  in  the  Continental 
camp   as  Washington  wrote  to  Congress,  the  army  was  so  reduced 
by  cold  and  starvation,  that  unless  some  capital  change  took  place  it 
must  "starve,  dissolve,  or  disperse."    In  Philadelphia  there  was  every 
comfort  and  almost  every  means  of  dissipation ;  at  Valley  Forge  nearly 
three  thousand  men  were  unfit  for  duty  because  they  were  barefooted 
•and  otherwise  naked"  (Sparks'.   Washington,  vol.  5.  pp.  107-203) 
Nvhile  many  were  in  the  hospitals  and  farm-houses  wanting  clothes  and 
shoes  (tbtd.).    So  desperate  was  the  situation  that  General  Huntington 
pre  erred  fighting  to  starving,  his  brigade  being  out  of  provisions, 
while  General  Vamum,  nuoting  the  saying  of  Solomon  that  "hunger 
will  break  through  a  stone  wall."  added,  "three  <lavs  successively  we 
have  been  destitute  of  bread;  two  days  we  h.ive  been  entirely  without 
meat     The  men  must  be  supplied  or  thcv  can  not  be  commanded  " 
(Ihd.  193.) 

This  condition  of  his  severely-tried  armv  Washington  represented 
to  Congress  eloquently  and  repeatedly  Practicallv  that  body  did 
nothing  to  remedy  the  evil,  but  on  the  other  han.l.  supgestefl  the  pro- 
priety of  attacking  Philadelphia,  while  .in  expedition  of  1,000  men 
«.!>:,  against  Washington's  judgment,  detached  for  an  inv.a^ion  of 
tnnada;  an  expe.lition  abundantly  supplied  with  commanders  in  the 


I 


i 


234 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


persons  of  three  major-generals,  but  unfortunately  lacking  in  such 
necessary  military  details  as  food,  clothing,  and  transportation.  (Ban- 
croft, vol.  9,  ch.  27.)  The  financial  condition  of  the  country  was  in 
harmony  with  the  physical  condition  of  the  army,  and  the  issue  of 
eight  and  one-half  millions  of  paper  money  caused  an  enormous  de- 
preciation in  the  value  of  the  currency,  increased  the  feeling  of  finan- 
cial insecurity  and  necessarily  impaired  the  credit  of  the  Government. 
The  army  was  small,  insufficiently  fed,  paid,  and  clad ;  before  them 
was  a  strong,  rich,  and  prosperous  enemy;  the  Government  was  weak, 
the  currency  suspected,  while  disaffection,  discontent,  and  jealousy 
were  prevalent  among  the  highest  officers. 

Such  was  the  close  of  the  year  1777  at  home.  Hardy,  determined, 
patriotic,  self-sacrificing  as  the  sturdy  r  'olutionists  were,  probably 
some  way  would  have  been  found  out  of  these  apparently  overwhel- 
ming misfortunes;  how,  no  one  at  that  time  could  possibly  foresee. 
Relief  was,  however,  after  weary  waiting,  to  come  from  a  quarter 
where  it  had  long  been  expected  with  hope  constantly  deferred. 

Franklin  had  early  established  indirect  and  secret  relations  with  the 
court  of  France  through  his  friend  Dumas,  a  Swiss  man  of  letters 
residing  chiefly  in  Holland,  who  was  a  devoted  adherent  of  the  Ameri- 
can cause,  and  who  early  advised  an  alliance  with  France  and  Spain, 
it  being  to  their  intere'^t  that  the  United  .States  should  be  independent 
of  England,  "whose  enormous  maritime  power  [filled]  them  with  ap- 
prehensions." In  1776  Silas  Dcnne  was  sent  out  as  a  political  agent, 
and  he  soon  opened  secret  and  informal  relations  with  the  French  de- 
partment of  foreign  affairs.  He  could  not  succeed  in  obtaining  from 
France  any  open  action,  but  his  purchase  of  munitions  of  war  and 
supplies,  and  his  many  other  acts  in  direct  violation  of  strict  neutrality 
were  permitted,  winked  at,  and  encouraged.  He  was  told  that  it  was 
for  the  interest  of  both  countries  "to  have  the  most  free  and  uninter- 
rupted intercourse."  but  that,  the  understanding  with  Britain  bein,' 
good,  there  could  not  he  recognition  of  the  shipping  of  military  sup- 
plies and  stores. 

Practically  in  this  omdition  did  matters  remain  after  the  arrival  of 
the  commissioners  fFranklin  and  I.ec").  although  they  also  constantly 
pressed  the  argument  contained  in  the  instructions  to  Deane.  namely: 
France  is  the  cotmtr\'  it  is  fifte'^t  for  us  to  obtain  and  cultivate:  the 
commercial  advantages  Britain  has  enjoyed  with  the  colonies  have 
gre."itly  contributed  to  lu  r  wealth  and  importance:  a  great  part  of  that 


GRAY  V.  UNITED  STATES 


23: 


1 


commerce  will  fall  to  France,  especially  (and  here  is  the  key  of  the 
negotiation)  if  she  favors  us  now,  for  our  trade  is  rapidly  increasing 
our  population  is  rapidly  increasing,  we  are  waxing  strong  and  rich' 
with  a  great  future  before  us ;  why  not  step  in  now,  even  at  the  cost  of 
war  with  England,  a  war  which  under  any  circumstances  you  momen- 
tarily expect. 

French  popular  sentiment  was  with  us,  but  to  the  popular  clamor 
delicately  excited  by  the  astute  diplomacy  of  Franklin  and  his  col- 
leagues, was  opposed  the  clear  and  calm  judgment  of  the  King's  ad- 
visers, men  who  conceived  it  their  duty  to  obtain  for  their  master  every 
advantage  possible  from  the  struggling  colonies  at  the  least  possible 
expense  and  risk.  Supplies  and  stores  were  furnished,  but  the  assist- 
ance was  not  acknowledged ;  munitions  of  war  found  their  way  across 
the  Atlantic,  while  the  fact  was  denied  to  England,  and  although  some 
of  these  very  supplies  came  from  the  arsenals  of  the  Government,  that 
fact  even  was  denied  to  our  own  representatives  who  had  forwarded 
them,  and  who,  as  matter  of  cour-e.  knew  as  much  of  the  transaction 
as  the  minister  who  permitted  and  disavowed  it.  Day  after  day  with 
out  tiring  did  Dumas.  Deane.  Franklin,  and  Lee  press  for  open  action 
on  the  part  of  France.  Steadily  did  they  receive  promises  and  secret 
aid.  but  always  were  they  postponed  as  to  the  great  step  -vhich  should 
produce  France  openly  to  the  worki  as  the  ally  of  the  colonies  and  the 
avowed  enemy  of  England.  Before  the  eyes  of  Count  Vergennes  was 
successfully  dangled  the  bait  of  a  practically  exclusive  share  in  Ameri- 
can commerce,  but  still  he  hoped  to  secure  this  advantage  without  an 
open  rupture  with  England. 

In  this  condition  did  matters  rest  until  the  news  arrived  of  Bur- 
goyne's  defeat.    This  news,  which  reached  France  earlv  in  December. 
ir77,  "apparently  occasioned  as  much  general  joy  a^'if  it  had  been 
a  victory  of  their  own  troops  over  their  own  enemies."     ("The  com- 
misjinners  to   Committee   on    Foreign    Affairs,    Paris.    December    18. 
1777)     The  negotiation';  instantly  took  so  long  a  stride  forward  that 
l)efore  the  18tb  of  December  it  was  r^ecided  to  conclude  a  treaty  of 
amity  and  commerce,  the  King  becnmin-  fixed  in  his  (•germination  to 
acknowledge  and  support  the  independence  of  the  colonies  by  every 
means  in  his  power.    Nothing  could  he  more  generous  and  liberal  than 
the  whole  tone  and  manner  of  the  French  negotiation  from  this  time, 
decided  and  committed  as  to  the  policy  of  openly  supporting  the 
coll  ..les.  there  were  no  half-spirited  meanires.  no  halting  at  petty  de- 


ii 


236 


il" 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


tails,  no  discussion  of  unimportant  trifles,  but  a  generous  and  open 
support ;  nevertheless,  it  was  not  until  Gates's  victory  at  Saratoga  had 
seemed  to  turn  the  tide  of  events,  and  while  still  in  ignorance  of  the 
want  and  suffering  at  Valley  Forge,  that  this  action,  so  vital  to  the 
future  of  the  American  Republic,  was  taken.  The  war  for  indepen- 
dence was  with  the  assistance  of  France  prosecuted  to  a  successful 
issue,  and  at  Yorktown  the  surrender  of  Comwallis  was  made  to  the 
combined  armes  of  Washington  and  Rochambeau  under  the  guns  of 
the  fleet  of  De  Grasse. 

This  brief  view  of  the  situation,  rehearsing,  as  it  does,  details  of 
most  familiar  history,  is  only  of  importance  as  it  relates  to  what  may 
be  called  sentimental  points  made  in  the  argument.  The  treaties  of 
1778  were  made  in  obedience  to  a  popular  demand  in  France;  they 
were  made  for  a  consideration  then  deemed  valuable  by  France,  and 
at  a  moment  which  then  seemed  opportune  to  France ;  but  they  came 
to  us  when  the  tide  was  apparently  turning  against  us,  and  the  aid  they 
promised  was  generously  given  us. 

The  30th  day  of  November,  1782,  provisional  articles  of  peace,  ac- 
knowledging the  thirteen  former  colonies  "to  be  free  and  independent," 
were  signed  at  Paris  by  the  representatives  of  the  United  States  and 
Great  Britain;  the  20th  of  January,  1783,  a  cessation  of  hostilities 
was  declared,  and  the  3d  of  September,  1783,  the  definitive  treaty  of 
peace  was  concluded.  France  had  thus  given  the  major  portion  of  the 
consideration  offered  by  her  for  the  contract  of  1778,  and  the  United 
States  were  free,  sovereign,  and  independent,  as  she  had  stipulated 
they  should  be. 

The  treaties  of  1778  were  two  in  number;  that  of  "alliance,"  the 
one  of  most  immediate,  and,  in  fact,  at  the  time,  of  absolutely  vital 
importance  to  the  United  States ;  and  that  of  "amity  and  commerce." 
While  separate  instruments,  they  were  concluded  upon  the  same  dav, 
were  the  result  of  the  same  negotiation,  signed  by  the  same  plenip.iten- 
tiaries,  and  are.  in  diplomatic  effect,  one  instrument.  The  treaty  of 
alliance,  after  referring  to  its  companion,  the  treaty  of  commerce, 
states  that  the  two  powers  "have  thought  it  necessary  to  take  into 
consideration  the  means  of  strengthening  the  engagements  therein 
made,"  and  of  "rendering  them  useful  to  the  safety  and  tranquillity 
of  the  two  parties:  particularly  in  case  Great  Britain,  in  resentment 
of  that  connection,  .  .  .  should  break  the  peace  with  France, 
either  by  direct  hostilities  or  by  hindering  her  commerce  and  naviga- 


GRAY  V.  UNITED  STATES 


2Z7 


t.on  m  a  manner  contrary  to  the  rights  of  nations  and  the  peac»  sul^ 
s.3tmg  between  the  two  crowns;'  and  the  two  powers  resolving  in 
such  case  to  jom  against  the  common  enen.y  determined  upon  the 
treaty,  wh.ch  prov.ded  that  if  war  should  break  out  between  France 
and  Great  Bntam  dunng  the  war  for  American  independence,  each 
party  should  a.d  the  other  according  to  the  exigencies^s  good  and 
faithfu  alhes;  that  the  essential  end  of  the  alliance,  called  a  "defen- 
s.v-e  alhance  was  the  "liberty,  sovereignty,  and  independence,  absolute 
and  unlimited,  of  the  United  States."  aosoiute 

Provision  was  also  made  for  a  possible  conquest  of  Canada  Ber- 
muda, and  the  islands  in  the  Gulf  of  Mexico,  and  each  party  wa's  for- 
bidden to  conclude  a  truce  or  peace  with  Great  Britain  without  the 
consent  of  the  other  It  was  further  agreed  that  neither  should  lav 
down  arms  until  the  independence  of  the  United  Stages  was  assured  b; 
treaties  tenn.nating  the  war.  No  claim  was  to  be  made  by  one  against 
the  other  for  compensation,  whatever  the  result,  and  then  came  the 
guaranty,  out  of  which  afterwards  arose  so  serious  complications 
national  and  mternat.onal.  which  not  only  drove  our  country,  weak  and 
exhausted  from  seven  years'  strife,  to  the  verge  of  war.  bu7also  stirred 

Vl^Z.^.cZT'^'''  """^^' '''''''  '-'^  *"^°  ''^  '-^-^^  «^ 

These  stipulations  are  contained  in  the  eleventh  and  twelfth  articles 
whereby  each  party  guaranteed  "forever  against  all  other  powers"- 
first.  the  United  States  to  France:  all  the  possessions  of  Franc  „ 
America  as  well  as  those  it  might  acquire  by  anv  future  trea.v  of 
peace:  second.  France  to  the  United  States :  "their  lihertv,  soverei^rtv 
and  independence,  absolute  and  unlimited."  together  with  their^s: 
sessions  and  their  additions  or  conquests  made  from  Great  Britain 
during  the  war.  Such,  in  substance,  was  the  treatv  of  alliance:  it  has 
never  been  contended,  so  far  as  known  to  us,  that  France  did  not  ful- 
f'll  the  requirements  which  this  instn mcnt  imposed  upon  her  during 
our  contest  with  Great  Britain.  ^ 

The  provisions  of  the  other  agreement,  the  treaty  of  commerce  of 
importance  in  this  case  (alluding  to  them  brieflv)  requircl  proteciion 
of  merchantmen;  required  ships  of  war  or  privateers  of  the  one  partv 
to  rio  no  injury  to  the  other;  and  provided  esi^eciai,  purely  exceptional 
and  exclusive  privileges  by  each  party  to  the  other  as  to  ships  of  war 
and  privateers  bringing  prizes  into  port. 

The  treaty  of  alliance  was  not  one-sided,  for  it  imposed  upon  the 


238 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


United  States  a  possible  duty  and  burden  in  the  fulfillment  of  the 
guaranty  of  French  possessions  in  America  "forever"  against  all  other 
powers.  This  issue  was  presented  without  delay.  The  French  revolu- 
tion began;  in  1793  the  King  was  beheaded,  when  France  was  in- 
stantly brought  face  to  face  with  the  powers  of  Europe,  and  her  pos- 
sessions in  America  were  soon  wrested  from  her. 

England  was  in  the  vanguard  of  the  war,  and  concluded  twenty- 
three  treaties  with  her  allies,  in  which  they  agreed  to  starve  out  the 
common  enemy.  To  this  end  was  it  stipulated  that  all  the  ports  should 
be  shut  against  France;  that  no  provisions  should  be  permitted  to  be 
exported  to  France,  and  that  these  measures  should  be  continued  and 
others  employed  for  the  purpose  of  injuring  French  commerce  and 
to  bring  that  nation  to  just  conditions  of  peace.  (Treaty  between 
Great  Britain  and  Prussia,  July  14,  1793.)  The  animus  of  the  alli- 
ance is  further  shown  in  the  instruction  of  the  Czar,  who  directed 
his  admiral,  in  fulfillment  of  stipulations  with  Great  Britain,  to  pre- 
vent the  French  from  receiving  supplies,  and  to  that  end  to  seize  all 
French  vessels  and  to  send  back  to  their  own  ports  all  neutral  vessels 
bound  to  France,  stating  that  while  these  measures  were  not  "strictly 
conformable  to  the  natural  laws  of  war"  they  were  justifiable  when 
employed  against  "those  arrant  villains,  who  have  overturned  all  duties 
observed  towards  God,  the  laws,  and  the  Government ;  who  have  even 
gone  so  far  as  to  take  the  life  of  their  own  sovereign." 

.\1I  Europe,  except  Sweden  and  Norway,  was  now  arrayed  againsi 
the  new  Republic  in  a  bitterness  of  warfare  scarcely  with  parallel,  and 
which  openly  descended  to  an  attempt  to  starve  the  French  pet^ple  into 
submission  through  an  attack  upon  neutral  commerce,  a  course  ad 
mittedly  unjustified  by  the  laws  of  war.  Naturally  France  looked  to 
the  United  States  for  aid,  relying  upon  the  pledge  of  the  treaty  of 
1778  and  the  assistance  rendered  us  in  our  scarcely-concluded  struggle 
by  her  fleet,  armies,  and  treasury. 

The  commercial  relations  between  France  and  the  United  State- 
were  already  m  )st  unsatisfactory.  Exceptional  favors  granted  tlie 
United  States  in  1787  and  1788  (Foreign  Relations,  vol.  1,  pp.  11.^- 
116)  and  had  been  withdrawn  and  the  equality  upon  which  French  and 
British  vessels  were  put  in  our  ports  had  excited  jealousy.  "No  excep- 
tional advantages  had  come  to  France  from  the  war  of  the  revolution, 
and  American  commerce  had  reverted  to  its  old  British  channels." 
(Treaties  and  Conventions,  etc.,  Bancroft  Davis,  985.) 


GRAY  V.  UNITED  STATES  239 

Jefferson  who  had  been  transferred  from  the  legation  in  Paris  to 
the  office  of  Secretary  of  State,  endeavored  to  secure  the  condu 
s,on  of  a  new  commercial  treaty,  but  unsuccessfully,  and  in  Ipri  117^ 
we  find  h.m  mstruct.ng  Mr.  Morris  that  "it  w.ll  be  impossible  to  deS 
nger  than  the  next  session  of  Congress  some  counter  regulatonstr 
he  protecfon  of  our  navigation  and  commerce.     I  must^nttat  you 

on  th..  subject.  If  they  wish  an  equal  and  cordial  treaty  with  us  we 
are  ready  to  enter  mto  it."  (Jefferson's  Works,  vol.  3,\Z]  Tn 
June  he  agam  wntes  that  "we  can  not  consent  to  the  la  e  innovations 
^^t  out  takmg  measures  to  do  justice  to  our  own  navigatio^S 
449),  and  after  the  imprisonment  of  the  King  he  informed  Mor  t 
that  some  matters,  such  "as  refom,ing  the  unfriendly  restrictions  on 
our  commerce  and  navigation,"  might  be  transacted  ev^^  by  tie  revo" 
fonary  government,  as  a  government  de  facto.     (Ibid  489  ) 

The  new  French  minister,  M.  Genet,  started  for  the  Un  ted  States 
.n  the  spnng  of  1791  armed  with  three  hundred  blank  .^mmiS^n 
to  d,stnbute  to  such  as  [would)  fit  out  cruisers  in  our  portsTprev 
on   the   Bnt.sh   commerce."     (Foreign    Relations,   vol.    Pp    3S ) 
F.nally.  the  cond.t.on  of  afiairs  caused  by  the  war  led  to'th'e  Presi 
dents  proclamation  of  neutrality,  from  which,  curiously,  and  by  wav 

of  ?harimh1h"  '''  V""''  '^'"  ^'^  ''''  °^  ^P"'-  -^  -  'he  22d 
Of  tha    month  the  proclamation  was  issued  declaring  that  "the  duty 

cerm   and  good  faith  adopt  and  pursue  a  conduct  friendly  and  im 
Panial  towards  the  belligerent  powers  "  ^ 

prwZ'f' I'^^l'T"'  ^■''"■'^  '^  '^"'^^-  ^"^''  h^^  commissioned 

wi.    thatThe  F.V   ?r'        '"^"'"''"^  '^'  ^''''''^y  °^  State  of  his 
P^tllZu  '^"^'•^'•"'"-'  "^'hould  observe,  as  far  as  in  their 

Po^  er.  ,he  pubhc  engagements  contracted  bv  both  nations:  and  that  by 

t  rexaZe":?"?™'"^  '^?"'^""  *^^>'  ''''  ^■^  ^  '"^  '^  ^'^  vvoH. 
ne  example  of  a  true  neutrality  which  does  not  consist  in  the  cowardiv 

jons^thev   have  contracted  with  them."     ,  Forei^  Relations,  vol.   1. 


I 


II 


240 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


In  September  following  Genet  asked  for  fire-arms  and  cannon  to 
protect  the  French  possessions  guaranteed  by  the  United  States,  but  he 
was  answered  by  the  SecreUry  of  War,  with  what  he  terms  "an 
ironical  carelessness,"  that  "the  principles  established  by  the  President 
in  his  proclamation  did  not  permit  him  to  lend  us  so  much  as  'a  pistol.'  " 
(Senate  Doc.  102,  19th  Cong.,  1st  sess.,  p.  219.) 

The  French  law  of  May  15,  1791,  which  "inhibited  Americans  from 
introducing,  selling,  and  arming  their  vessels"  in  France,  and  "from 
enjoying  all  the  advantages  allowed  to  those  built  in  the  ship-yards 
of  the  Republic,"  was  suspended  by  the  national  convention  the  19th 
day  of  February,  1793,  when  extensive  privileges  were  granted  our 
commerce  (ibid.  35),  but  in  less  than  three  months  (9th  May,  179.Vi. 
seventeen  days  after  the  date  of  the  President's  proclamation,  but  be- 
fore news  of  its  contents  could  have  been  received,  the  National  Con- 
vention issued  a  decree  ordering  the  arrest  of  any  neutral  vessels  laden 
with  provisions  bound  to  an  enemy's  port.  That  this  was  an  open  and 
palpable  violation  of  neutral  rights  was  not  denied,  for  it  was  a  meas- 
ure understood  to  be  retaliatory  to  the  course  pursued  by  Great  Britain, 
and  compensation  was  prcmiised  to  those  neutrals  who  should  suffer  by 
its  operation.    (Ibid.  42.) 

This  decree  of  May  9,  1793,  authorized  French  vessels  of  war  and 
privateers  to  arrest  neutral  vessels  laden  with  provisions,  the  property 
of  neutrals,  but  destined  to  an  enemy's  port,  or  laden  with  enemy's 
merchandise,  the  merchandise  to  be  prize,  and  the  neutral  provisions 
to  be  paid  for,  together  with  proper  freight  and  indemnity  for  delay. 
The  23d  of  the  same  month  American  vessels  were  exempted  from  the 
operation  of  this  decree  (Foreign  Relations,  vol.  1,  p.  244) ;  five  days 
later  this  second  decree  was  suspended;  July  1  it  was  again  put  in 
force;  and  July  27  it  was  repealed,  leaving  the  decree  of  May  9 
finally  in  force  as  against  American  commerce.  (Ibid.,  vol.  3,  p.  2S4.) 
Our  minister  remonstrated,  and  the  national  assembly  vacillated :  never- 
theless the  decree  was  executed  in  plain  and  admitted  violation  nf  neu- 
tral rights. 

The  decree  of  May  9,  1793,  and  that  of  November  18.  1794,  directed 
the  seizure  of  neutral  vessels  containing  enemy's  goods,  althousjli  the 
treaty  of  1778  expressly  provided  that  "free  ships  make  free  goods' 
(Art.  23,  Treaty  of  Commerce) ;  and  further,  under  an  ordinance  of 
1744,  revived  for  the  purpose,  a  foreign  vessel  having  on  board  a  super- 
cargo or  officer  from  an  enemy's  country,  or  whose  crew  was  by  more 


GRAY  V.  UNITED  STATES 


241 


than  one-third  subjects  of  an  enemy,  was  adjudged  prize.  Mere  clear- 
ance for  some  of  the  West  India  Islands,  by  decree  of  February  1 
1797,  subjected  neutral  vessels  to  capture  and  confiscation;  the  decree 
of  January  18,  1798,  issued  by  the  council  of  five  hundred,  condemned 
neutral  vessels  carrying  any  British  merchandise,  and  March  2  1797 
came  mto  force  the  requirement  of  the  crew  list  or  "r6le  d'cquipage" 
which  will  be  more  fully  considered  hereafter.    (Doc   102  p   160  )     ' 

President  Washington,  in  1793  (message  December  5).' spoke  of  the 
vexations  and  spoliations  understood  to  have  been  committed  on  our 
vessels  and  commerce  by  the  cruisers  and  officers  of  some  of  the 
belligerent  powers  as  requiring  attention,  and  suggested  that,  on  receipt 
of  proofs,  "due  measures  would  be  taken  to  obtain  redress  of  the  past 
and  more  effectual  provisions  against  the  future;"  whereupon  proof 
began  immediately  to  be  furnished. 

Before  this,  the  Secretary  of  State,  then  Mr.  [efferson,  had  adver- 
tised to  the  world  assurances  of  governmental  protection  and  aid. 

nf^A,?af,i'  %''^^7it!'°'^  '^^  Vr^^\Atut  [he  said  in  his  circular 
of  August  27,  1793,]  to  assure  the  merchants  of  the  United 
bt^tes  concmied  in  foreign  commerce  or  navigation  that  our 
attention  will  be  paid  to  any  injuiies  they  may  suffer  on  the  lugh 
seas  or  in  foreign  countries,  contrary  to  the  laws  of  nations  and 
existing  treaties,  and  that  on  their  forwarding  hither  well  authen- 
f^  5hei7    r  7  °^  *^^  **™*'  ^^°^"  proceedings  will  be  adopted 

Mr.  Morris  had  already  brought  to  the  attention  of  the  French 
mmi.ner  of  foreign  affairs  "the  obnoxious  acts  of  the  late  assembly  " 
but  without  securing  redress,  as  the  "attention  of  the  Government  was 
too  strongly  directed  towards  itself"  to  think  of  exterior  interests, 
"and  the  assembly,  at  open  war  with  the  executive,  would  certainly 
reject  whatever  should  now  be  presented  to  them."     (Doc.   102    p. 

Meantime  our  relations  with  Great  Britain  had  become  extremely 
threatening,  various  questions  growing  out  of  the  revolution  still  re- 
mained unadjusted,  and  when  the  instructions  given  bv  the  admiralty, 
June  8,  1793,  became  known  in  the  United  States  it  was  felt  that  de- 
cisive action  could  not  be  longer  delayed.  These  instructions  directed 
the  commanders  of  His  Majesty's  ships  of  war  and  privateers  to  seize 
all  vessels  loaded  with  com,  flour,  or  mea!  hound  to  any  port  in  France, 


Ml 


[t-  \ 


242 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


or  to  any  port  occupied  by  French  armies,  and  to  send  the  vessels  thus 
seized  into  any  convenient  harbor  that  t'.ie  cargo  might  be  purchased  by 
the  British  Government  and  the  ships  released ;  also  to  seize  all  ships, 
whatever  their  cargo,  bound  to  a  blockaded  port;  also  to  warn  off 
under  penalty  of  seizure  any  vessel  destined  to  a  port  not  actually 
blockaded,  but  "declared"  to  be  blockaded.  (Foreign  Relations,  vol.  1, 
p.  240.) 

Great  Britain,  when  complaint  was  made  of  these  orders,  attempted 
to  justify  them  upon  the  insufficient  plea  that  provisions  were  contra- 
band of  war.  (Foreign  Relations,  vol.  1,  pp.  240,  448  et  seq.)  Cor- 
respondence leading  to  no  prospect  of  a  satisfactory  result,  the  Presi- 
dent nommated  Mr.  Jay  as  minister,  saying  to  the  Senate  (April  16, 
1794),  that  "as  peace  ought  to  be  pursued  with  unremitted  zeal  before 
the  last  resource,  which  has  so  often  been  the  scourge  of  nations,  and 
can  not  fail  to  check  the  advanced  prosperity  of  the  United  States, 
is  contemplated,"  he  had  concluded  to  take  this  action.  {Ibid.  447.) 
The  instructions  given  Mr.  Jay  are  not  of  importance  in  this  connec- 
tion, as  it  is  sufficient  to  note  the  result  of  his  negotiation  in  the  treaty 
which  be?rs  his  name,  and  to  compare  its  important  provisions  with 
our  agreement  made  in  1778  with  the  King  of  France. 

We  had  promised  France  that  their  ships  of  war  and  privateers 
might  freely  carry  whithersoever  they  pleased  the  ships  and  goods 
taken  from  their  enemies;  that  these  prizes  should  not  be  ariested  or 
seized,  or  examined,  or  searched  in  our  ports,  but  might  at  any  time 
freely  leave,  while  no  shelter  or  refuge  was  to  be  given  to  vessels 
having  made  prize  of  her  "subjects,  people,  or  property"  (Art.  17, 
Treaty  of  Commerce,  1778.)  The  United  States  had  thus  given 
France,  and  for  consideration,  not  only  a  valuable,  but  an  exclusive 
right;  yet  the  Jay  treaty,  in  the  twenty-fifth  article,  gave  these  same 
privileges  to  Great  Britain,  exclnding  all  vessels  which  "should  1  ave 
made  prize  upon  fher]  subjects." 

The  conflict  of  the  treaties  is  evident  and  of  course  was  fully  appre- 
ciated at  the  time. 

While  the  Jay  treaty  was  concluded  in  November,  1794,  its  ratifici- 
tions  were  not  exchanged  until  October  the  following  year,  and  mean- 
time the  British  orders  in  council  directing  seizure  of  our  vessels  aiid 
provisions  bound  to  France  wert  so  enforced  as  to  call  forth  from 
Mr.  Randolph,  then  Secretary  of  State,  the  warning,  as  late  as  July, 
179.S,  that  the  lav  treatv  had  not  vet  been  ratified  bv  the  President: 


GRAY  V.  UNITED  SiATES 


243 


"the  late  British  order  in  council  for  seizing  provisions  is  a  weighty 
obstacle  to  ratification.  I  do  not  suppose  that  such  an  attempt  to  starve 
France  will  be  countenanced.'  (Foreign  Relations,  vol.  1,  p.  719) 
Every  endeavor  was  made  by  the  United  States  to  secure  a  repeal 
of  the  admiralty  order,  but  without  success,  and  finally  our  minister 
in  London,  Mr.  Adams,  was  instructed  that  if,  after  every  prudent 
effort,  he  found  it  could  not  be  removed,  its  continuance  was  not  to 
be  an  obstacle  to  the  excha  ge  of  ratifications.  The  order  was  not 
removed  or  modified ;  neven  leless  ratifications  of  the  treatv  were  ex- 
changed the  following  October. 

It  should  here  be  noted  that  soon  after  the  exchange  a  commission 
wai  organized  which,  among  other  subjects,  was  to  ascertain  the 
a.-nount  of  the  claims  of  American  citizens  on  Great  Britain  for  cap- 
tures made  in  violation  of  international  law.  After  various  interrup- 
tions the  labors  of  this  tribunal  closed  in  February,  1804,  when  awards 
considerably  exceeding  a  million  and  a  quarter  pounds  sterling  had 
been  made  in  favor  of  the  United  States  on  account  of  these  claims. 
(Treaties  and  Conventions,  etc..  Bancroft  Davis,  1014-1016.)  This 
commission  existed  by  virtue  of  the  sixth  and  seventh  articles  of  the 
Jay  treaty,  the  latter  of  which  provided  that  whereas  complaints  had 
been  made  by  citizens  of  the  United  Staies  that  during  the  course  of 
tiie  war  "in  which  His  Majesty  is  now  engaged  they  have  sustained 
considerable  losses  and  damage  by  reason  of  irregular  or  illegal  cap- 
tures or  condemnations  of  their  vessels  and  other  property  under  color 
of  authority  or  commissions  from  His  Majesty,"  it  was  agreed  that 
where  adequate  compensation  could  not  then  be  actually  obtained  in 
the  ordinary  course  of  justice  full  compensation  would  be  made  by  the 
British  Goveniment. 

Note  further  that  these  claims  were  for  spoliations  committed  by 
England  to  starve  the  French,  as  the  claims  now  before  us  are  for 
spoliations  committed  by  France  to  feed  her  people,  and.  again,  re- 
member, by  way  of  explanation,  that  the  remedy  alluded  to  in  the  Jay 
treaty  as  being  perhaps  obtainable  in  due  course  of  justice,  was  a  pos- 
sible recovery  by  the  captured  vtssel  in  an  action  against  the  privateer 
upon  his  bond. 

Mr.  Morris,  proving  unacceptable  to  the  French  Government,  was 
recalled  at  their  request,  and  succeeded  bv  Mr.  Monroe,  who  en- 
deavored to  secure  from  his  colleague.  Mr.  Tav.  information  as  to  the 
1       r's  negotiation,  which  was  refused,  as  Monroe  declined  to  pledge 


244 


Jl     GMENTS  OF  THE  COURT  OF  CLAIMS 


himself  not  to  communicate  it  to  the  French  Government.  (Foreign 
Relations,  vol.  1,  pp.  517,  700.)  France  was  restive  under  the  situa- 
tion, and,  shortly  after  the  ratification  of  the  treaty,  asked  whether  the 
President  had  caused  orders  to  be  given  to  prevent  the  sale  of  prizes 
conducted  into  the  ports  of  the  United  States  by  vessels  of  the  Republic 
or  privateers  armed  under  its  authority.  As  to  this  question  the  Sec- 
retary of  State  informed  the  President : 

That  the  twenty-fifth  article  of  the  British  treaty  having  ex- 
plicitly forbidden  the  arming  of  [French]  privateers,  and  the  sell- 
ing of  their  prizes  in  the  ports  of  the  United  States,  the  Secretary 
of  the  Treasury  prepared,  as  a  matter  of  course,  circular  letters 
to  the  collectors  to  conform  to  the  restriction  contained  in  that 
[article  of  the  British  treaty]  as  the  law  of  the  land.  This  was 
the  more  necessary,  as  formerly  the  cc'lectors  were  instructed  to 
admit  to  an  entry  and  sale  the  prizes  brought  into  our  ports  by  tlic 
French. 

The  Secretary  also  wrote  our  minister  in  London  j.at  orders  had 
been  given  to  prevent  the  sale  of  prizes  brought  into  United  Stat<  > 
ports  by  French  privateers,  "conformably  with  the  twenty-fifth  article  ' 
of  the  Jay  treaty.  So  we  had  finally  and  openly  transferred  any  ex- 
clusive rights  of  France  under  the  treaty  of  commerce  to  her  bitter 
enemy,  Great  Britain. 

But  we  had  another  obligation  towards  our  former  ally,  that  of 
guaranteeing  her  West  India  Islands. 

Long  prior  to  this  (December  11,  1787)  Jefferson,  while  in  Paris, 
had  told  the  liritish  minister  there,  during  a  discussion  as  to  the  effect 
of  the  treaties  of  1778,  in  case  of  war  between  i  ranee  and  Great 
Britain,  and  told  him  "frankly  and  without  hesitation,"  that  the  dis- 
positions of  the  United  States  would  then  be  neutral,  and  that  ihi< 
would  be  to  the  interest  of  both  powers,  because  it  would  relieve  both 
from  all  anxiety  as  to  feeding  their  West  India  Islands;  that  En- 
gland, too,  by  suffering  us  to  remain  so,  would  avoid  a  heavy  land  war 
on  our  continent,  which  nii(jht  very  much  cripple  her  proceedings 
elsewhere;  that  our  treaty  jwitli  France]  indeed  obliged  us  to  receive 
into  our  ports  the  armed  vessels  of  P'rancc,  with  their  prizes,  and  to 
refuse  admission  to  the  prizes  made  on  her  by  her  enemies;  that  there 
was  a  clause,  also,  by  which  we  guaranteed  to  France  her  American 
posse; sions,  and  which  might  perhaps  force  us  into  the  war  if  these 


GRAY  V.  UNITED  STATES 


245 


were  attacked.     "Then  it  will  be  war,"  said  the  minister,  "for  they 
will  assuredly  be  attacked." 

In  1790  another  American  minister  informed  the  English  secretary 
of  state  for  foreign  affairs  "that  in  a  war  between  Great  Britain  and 
the  House  of  Bourbon  (a  thing  which  must  happen  at  some  time)  we 
(the  United  States]  can  give  the  West  India  Islands  to  whom  we 
please,  without  engaging  in  the  war  ourselves,  and  our  conduct  must 
be  governed  by  our  interest"  (Wait's  American  State  Papers,  vol. 
10,  p.  97) ;  and  this  in  face  of  a  treaty  concluded  but  twelve  years 
l)efore  wherein  we  pledged  ourselves  to  a  guaranty  "forever"  of  the 
possessions  in  America  of  that  very  House  of  Bourbon.  Early  in 
1794  Mr.  Jefferson,  then  Secretary  of  State,  said,  as  to  this  subject, 
that  he  had  no  doubt  we  should  inteqwse  at  the  proper  time  "and 
declare  Ijoth  to  England  and  France  that  these  islands  are  to  rest 
with  France,  and  that  we  will  make  a  common  cause  with  the  latter 
for  that  object."  (Jefferson  to  Madison,  April  3,  1794.  Jefferson's 
Works,  vol.  4,  p.  103.) 

The  understanding,  therefore,  seems  to  have  l#en  clear,  yet  the  West 
Indi-i  Islands  went  to  England. 

The  French  spoliations  began  heedlessly  through  the  mistaken  action 
of  subordinates,  who  confounded  Americans  with  English,  because  of 
the  identity  of  race  and  language.  In  October.  1793.  Mr.  Deforgues 
wrote  to  Mr.  Morris: 

We  hope  that  the  Government  of  the  United  States  will  attrib- 
ute to  their  true  cause  the  abuses  of  which  you  complain,  as  wdi 
as  other  vblatwns  of  which  our  cruisers  may  render  thcmselvc.-; 
guilty  in  the  course  of  the  present  war.  It  must  perceive  how  dini 
ailt  it  is  to  contain  within  just  limits  the  indignation  of  our 
marines,  and.  in  general,  of  all  the  French  patriots,  against  a 
people  speaking  the  same  language  and  having  the  same  habits  as 
the  free  Americans.  The  difficulty  of  distinguishing  our  allies 
from  our  enemies  has  often  been  the  cause  of  offenses  conmiittcd 
on  board  your  vessels.  All  that  the  administration  can  do  is  to 
order  indenmifiration  to  those  who  have  snfferetl  and  to  punish 
the  guilty.     (Doc.  102.  p.  70.) 

N'ot  long,  however,  could  this  plaintive  response  suffice  as  an  excuse 
for  the  outrages  committed  upon  our  citizens  and  their  property,  for. 
as  we  have  seen  by  the  decrees  already  cite<l  (and  there  were  many 
more),  the  assembly  soon  joincil  in  the  attack,  authorized  it.  and  ren- 
dered it  governmental. 


246  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

A  single  mistaken  capture  might  be  forgiven,  provided  proper  com- 
pensation were  made  for  injury  to  the  citizen;  but,  when  wholesale 
seizures  were  directed  by  the  legislature  and  thereupon  made  by  the 
executive,  the  matter  assumed  a  much  more  serious  and  difficult  aspect. 
To  use  the  words  of  Mr.  Sumner : 

As  intelligence  of  these  spoliations  reached  the  United  State^ 
our  whole  cori.merce  was  fluttered.  Merchants  hesitated  to  expose 
ships  and  cargoes  to  such  cruel  hazards,  and  thereupon  appeared 
the  circular  letter  of  the  Secretary  of  State  and  the  President  ^ 
proclamation  encouraging,  by  the  promise  of  protection,  those  in- 
jured by  the  spoliators. 

So  ended  the  first  phase  of  this  controversy  with  a  nation  to  whom 
we  were  bound  by  the  strongest  treaty  ties,  a  nation  engaged  in  war 
against  an  apparently  overwhelming  force  and  whose  enemies  used 
means  of  attack  openly  admitted  to  be  contrary  to  the  laws  of  civilized 
warfare ;  in  alleged  self-defense,  it  pursued  an  equally  if  not  more  in- 
defensible course,  which  resulted  in  severe  and  unjustifiable  loss  t« 
our  citizens.  That  this  system  o."  seizures  or  spoliations  was  forbid- 
den by  every  principle  of  civilized  warfare  was  frankly  admitted  at  the 
time,  and  later.  England,  which  had  pursued  a  similar  course,  made 
ample  amends,  and  Spain  which  had  countenanced  the  policy  of 
France,  and  lent  her  ports  in  aid  of  it.  did  the  same. 

Nor  were  we  altogether  clear  of  blame.  We  had  not  complied,  s<. 
far  as  appear*,  with  the  stipulations  of  the  treaties  of  1778,  intended  to 
provide  for  possible  war ;  we  had  not  protected  the  West  India  Islan.b, 
and  not  only  had  we  refrained  from  acting  as  the  ally  of  France,  Init. 
by  the  Jay  treaty,  we  had  given  to  her  enemy  the  exclusive  port  privi- 
leges which  she  most  valued,  and  which  were  secured  to  her  by  tlic 
treaty  of  amity  and  commerce. 

It  is  not  for  us  to  criticise  the  patriotism  and  wisdom  of  the  Ameri- 
can statesmen  of  that  day,  the  leading  figures  of  our  history,  the  ;ncn 
who  bore  the  brunt  of  the  fight  which  brought  thirteen  struculnv.,' 
colonics  through  a  war  with  one  of  the  mightiest  and  bravest  nations 
of  Kurope  to  the  succes.iful  issue  which  made  possible  the  Unitn! 
States  of  today,  with  thoir  thirty-eight  States,  eight  Territories.  nv<\ 
(xipulation  of  not  far  from  sixty  millions.  Responsible  for  the  wel- 
fare and  future  of  a  little  republic  of  some  two  and  a  half  million* 
of  inhabit.ints.  exhaustr.l  hv  -ieven  ve.irs'  w.irfarr,  and  environed  on 


GRAY  V.  UNITED  STATES 


247 


this  continent  by  the  three  great  monarchies  of  Europe;  their  country 
poor  in  finance,  weak  in  population,  and  an  object  of  jealousy  and  dis- 
trust to  every  sovereign,  these  eminent  men  dealt  in  a  spirit  of  en- 
lightened patriotism  and  high  courage  with  the  political  questions  pre- 
sented to  them,  according  to  their  best  and  well-tr;  ined  judgment,  in 
the  light  of  the  information  they  then  had.  We  now,  as  a  judicial 
body,  treat  the  facts  as  they  are  presented  in  relation  to  private  rights, 
and  no  judgment  of  ours  can  properly  be  held,  as  it  has  been  argued 
it  would  be,  to  reflect  in  any  manner  upon  the  course  pursued  by  the 
President,  his  advisers  and  subordinates,  in  the  anxious  period  between 
1789  and  1800.  Upon  their  diplomatic  foresight  and  ability  no  decision 
of  ours  can  cast  a  shadow,  and  it  must  be  clearly  understood  that  we 
deal  only  with  those  private  rights  which  may  possibly  have  been  in- 
vaded in  the  pursuit  of  a  policy  aiming  at  the  life  and  prosperity  of  the 
nation. 

The  French  complained  of  our  course  during  the  war  then  progres- 
sing, while  we  complained  of  spoliation  and  maltreatment  of  our  ves- 
sels at  sea,  losses  by  the  embargo  at  Bordeaux,  non-payment  of  drafts 
drawn  by  the  Colonial  administration,  seizures  of  cargoes  of  vessels, 
non-pcrforTnance  of  contracts  by  Government  agents,  condemnation  of 
vessels  and  their  cargoes  in  violation  of  the  treaties  of  1778,  and  cap- 
tures under  the  decree  of  1793.  (Foreign  Relations,  vol.  1,  pp.  748 
et  seq.) 

Pinckney  was  ordered  out  to  replace  Monroe  under  particular  in- 
structions to  "look  into"  the  claims  of  our  citizens  {ibid.  742),  hut  be- 
fore he  arrived  the  decree  of  October  31,  1796.  was  made  public,  which 
prohibited  the  importation  of  manufactured  articles,  whether  of  En- 
glish make  or  English  commerce  (6  Garden.  117).  and  Pinckney  upon 
his  arrival  was  not  recognized  or  received,  but  ordered  to  leave  France. 
as  that  Government  would  receive  no  minister  from  the  United  States 
"until  after  a  reparat-on  of  the  grievances  demanded  of  the  American 
r.overnment.  an'  which  the  French  Republic  had  a  right  to  expect." 
("Foreign  Relations,  vol.   1.  p.  746.) 

The  strained  relations  between  the  two  countries  can  not  be  better 
i'lustrated  than  by  an  extract  from  the  -speech  of  the  president  of  the 
l">ircctory  made  to  Monroe,  in  the  presence  of  ihe  diplom.itic  corps, 
when  the  latter,  on  the  .^Ofh  DecemlHT.  17%.  took  his  official  leave 
I'pon  that  occasion  the  president  said; 


248  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

By  presenting  this  clay  to  the  Executive  Directory  your  letters 
of  recall  you  offer  a  very  strange  spectacle  to  Europe.  France, 
rich  in  her  freedom,  surrounded  by  the  train  of  her  victories,  and 
strong  in  the  esteem  of  her  allies,  will  not  stoop  to  calculate  the 
consequences  of  the  condescension  of  the  American  Government 
to  the  wishes  of  its  ancient  tyrants.  The  French  Republic  expects, 
however,  that  the  successors  of  Columbus,  Raleigh,  and  Penn,  al- 
ways proud  of  their  liberty,  will  never  forget  that  they  owe  it  to 
France.  They  will  weigh  in  their  wisdom  the  magnanimous 
friendship  of  the  French  people  with  the  crafty  caresses  of  i>er- 
fidious  men  who  mediate  to  bring  them  again  under  their  former 
yoke.  Assure  the  good  people  of  America,  Mr.  Minister,  that, 
like  them,  we  adore  liberty;  that  they  will  always  possess  ou-^ 
esteem,  and  find  in  the  French  people  that  republican  generosit\ 
which  knows  how  to  grant  peace  as  well  as  to  cause  its  so\ 
ereignty  to  be  respected.    (Foreign  Relations,  vol.  1,  p.  747.) 

This  speech,  as  President  Adams  said,  discloses  sentiments 

more  alarming  than  the  refusal  of  a  minister,  because  moro 
dangerous  to  our  independence  and  union,  and  at  the  same  tiiiu 
studiously  marked  with  indignities  towards  the  Government  of  the 
United  States.  It  evinces  a  disposition  to  separate  the  penplc 
of  the  I'nited  States  from  the  Government.  .  .  .  Such  at- 
tempts ought  to  be  repelled  with  a  decision  which  si.all  conviiui 
France,  and  the  world,  that  we  ire  not  a  degraded  people,  huniili 
ated  under  a  colonial  spirit  of  fear  and  sense  of  inferioniy. 
fitted  to  lie  the  miserable  instruments  of  foreign  influence,  ami 
reiranlless  of  national  honor,  character,  and  interest.  (Forc;i;t; 
Relations,  vol.  1,  p.  40.) 


The  President  added  that,  having  no  diplomatic  representative  in 
France,  he  had  no  means  of  obtaining  official  information,  but  believin.:; 
that  a  decree  had  l>een  passed  contravening  in  part  the  commercial 
treaty  of  1778,  he  laid  a  copy  of  that  instrument  before  the  Congres', 
stating  that  it  was  his  "indispeiis.ible  duty  to  recommend  to  (theirl 
consideration  effectual  measures  of  defense."  The  Congress  were, 
however,  peacefully  inclined,  although  before  adjourning  they  passt ! 
the  law  providing  passports  for  American  vessels.     (1  Stat.  1-.  4S"  i 

Soon  after  the  adjournment  (June  22)  Pinckncy,  Marshall,  and 
Gerrj-  were  commissioned  envoys  to  France  for  the  purpose  of  endcav 
oring  to  renew  relations  with  that  country 

Jefferson,  then  Vice-President,  immediately  wrote  Gerry: 


GRAY  V.  UNITED  STATES 


249 


That  peace  is  undoubtedly  at  present  tlie  first  object  of  our  na- 
tion. Interest  and  honor  are  also  national  considerations  But 
interest,  duly  weighed,  is  in  favor  of  peace,  even  at  the  expense 
of  spoliations,  past  and  future,  and  honor  can  not  now  be  an  ob- 
ject. I  he  insults  and  injuries  committed  on  us  by  both  the  bel- 
ligerent parties  from  the  beginning  of  1793  to  this  day.  and  still 
continuing,  can  not  be  wiped  off  by  engaging  in  war  with  one  of 
them.  Our  countrymen  have  divided  themselves  by  such  strong 
affections  to  the  French  and  the  English  that  nothing  will  secure 
us  internal  y  but  a  divorce  from  both  nations.  (Jefferson's  Works 
vol.  4,  p.  lo7.) 

The  tone  and  intent  of  the  instructions  to  these  envoys  may  be  under- 
stood from  one  paragraph  in  Mr.  Pickering's  letter  to  them  f  Doc  10^ 
p.  464.  July  15.  1797) : 

Finally,  the  great  object  of  the  Government  being  to  do  justice 
to  France  and  her  citizens,  if  in  annhing  we  have  injured  them 
to  obtain  justice  for  the  multiplied  injuries  they  have  committed 
against  us.  and  to  preserve  peace,  your  style  and  manner  of  pro- 
ceedmg  will  be  such  as  shall  most  directly  tend  to  secure  these 
objects. 

The  envoys  had  hardly  reached  Paris  when  another  decree  was 
aimed  against  our  suffering  merchants  which  prohibited  every  vessel 
that  had  enteral  an  English  port  from  being  admitted  into  any  port 
of  the  French  Republic,  and  handed  iver  to  condemnation  every  vessel 
laden  in  whole  or  in  part  with  merchandise  coming  out  of  England 
or  her  !H>.-e<sions.  (Doc.  102.  p.  483.)  The  American  ministers  pro- 
tested, sayintr  that  the  decree  attacked  the  interests  and  independence 
of  neutral  powers :  that  it  took  from  them  the  profits  o  an  honest  and 
lawful  industr>-.  as  well  as  the  inestimable  privilege  of  conducting  their 
own  affairs  as  their  judgment  might  direct,  and  added  that  acquiescence 
in  It  would  establish  a  precedent  for  national  degradation  which  would 
atithori^f  an,\  measures  power  might  he  ilisposed  to  practice  ( fhid 
4*<3  et  seq.) 

France  leaned  to  dictation,  not  negotiation.  With  Ponaparte  suc- 
i-essful  in  Italy  and  Talleyrand  at  the  head  of  foreign  affiirs.  she  was 
m  a  f.ir  from  conciliatorv'  temper.  The  result  was  that,  without  ever 
being  received  officially,  the  envoys  returned,  not.  however,  before 
Talleyrand  had.  as  a  set-off  to  their  demands,  presented  the  counter- 
claims of  France.    (Foreign  Relations,  vol.  2.  p.  190.) 


250 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


During  this  mission  occurred  the  notorious  X.  Y.  Z.  episode,  when 
demands  were  made  upon  the  ministers  by  individuals,  veiled  in  the 
dispatches  under  these  mysterious  letters,  for  a  large  sum  of  money 
as  a  douceur  to  the  Directory  and  an  additional  and  much  larger 
amount  as  a  loan  to  France.  Talleyrand  later,  and  over  his  own  signa- 
ture, proposed  a  loan,  omitting  reference  to  the  douceur,  and  in  the 
same  note  complained  of  the  Jay  treaty  as  a  principal  grievance.  The 
dispatches  containing  an  account  of  the  X.  Y.  Z.  episode  coming  back 
from  the  United  States  in  print.  Gerry,  the  only  envoy  then  remain- 
ing, left  Paris  on  the  26th  July,  1798.  (Treaties  and  Conventions,  etc., 
Bancrt)ft  Davis,  997,  998.) 

The  return  of  the  mission  created  an  effect  at  home  very  inimical 
to  France;  the  President  said  he  would  never  send  another  minister 
without  assurances  that  he  would  be  received,  respected,  and  honored 
as  "the  representative  of  a  great,  free,  powerful,  and  independent  na- 
tion" (Foreign  Relations,  vol.  2,  p.  199) ;  but  before  this  (June  21, 
1798),  Congress  had  passed  the  act  "to  more  effectually  protect  the 
commerce  and  coasts  of  the  United  States"  (May  28,  1798,  1  Stat.  L. 
561),  the  act  suspending  commercial  relations  with  France  (June  1.3. 
1798),  and  various  other  laws  of  similar  import,  which  will  be  con- 
sidered hereafter  in  connection  with  another  branch  of  this  case. 

Washington  was  put  in  command  of  the  army  as  lieutenant-general 
and  commander-in-chief,  and  in  accepting  said  (5  Annals  of  Cong., 
622): 

The  conduct  of  the  Directory  of  France  towards  our  country ; 
their  insidious  hostility  to  its  Government ;  their  various  practice- 
to  withdraw  the  affections  of  the  people  from  it ;  the  evident  ten- 
dency of  their  acts  and  those  of  their  agents  to  countenance  and 
invigorate  opposition;  their  disregard  of  solemn  treaties  and  the 
law  of  nations;  their  war  upon  our  defenseless  commerce;  their 
treatment  of  our  ministers  of  peace;  and  their  demands,  amount- 
ing to  tribute,  could  not  fail  to  excite  in  me  corresponding  senti- 
ments with  those  my  countrymen  have  so  generally  expressed. 


This  state  of  affairs  could  not  long  continue.  Talleyrand,  appre- 
ciating the  dangers  of  the  situation,  soon  opened  indirect  communica- 
tion with  the  United  States,  and  on  the  28th  September,  said  that  our 
plenipotentiary  if  sent  would  be  "received  with  the  respect  due  to  the 
representative  of  a  free,  independent,  and  powerful  nation."    (Foreign 


GRAY  V.  UNITED  STATES 


251 


Relations,  vol.  2,  p.  242.)  This  was  an  exact  compliance  with  the 
President's  condition  precedent,  and  thereupon  Oliver  Ellsworth,  Chief 
Justice  of  the  United  States.  William  R.  Davie,  late  governor  of' North 
Carolina  (Patrick  Henry  declining  to  serve),  and  William  Van= 
Murray,  minister  resident  at  The  Hague,  were  commissioned  envoys 
extraordinary  and  ministers  plenipotentiary  "to  discuss  and  settle  by  a 
treaty  all  controversies  between  the  United  States  and  France." 
{Ibid.  243.)  This  mission,  appointed  in  March,  1799,  closed  its 
labors  by  the  treaty  signed  September  30,  1800. 

Arriving  in  France  they  found  the  Directory  no  longer  in  existence, 
but  treated  with  Napoleon,  then  become  First  Consul.  Ministers  were' 
appointed  to  meet  them,  and  the  7th  April,  1800,  powers  were  ex- 
changed and  negotiations  began.     (Doc.  102,  p.  579.) 

The  Americans  were  instructed  to  inform  the  French  ministers  at 
the  opening  that  we  expected,  "as  an  indispensable  condition  of  the 
treaty,"  a  stipulation  to  make  to  our  citizens  "full  compensation  for  all 
losses  and  damage  which  they  shall  have  sustained  by  reason  of  irregu- 
lar or  illegal  captures  or  condemnations  of  their  vessels  and  other 
property,  under  color  of  authority  or  commissions  from  the  French 
Republic  or  its  agents."  Other  points  were  urged  upon  them,  but 
for  the  purpose  of  this  case  it  is  necessary  only  to  note  that  they  were 
to  obtain  a  claims  commission,  to  refuse  recognition  of  the  treaties 
of  1778,  to  refuse  a  guaranty,  to  refuse  any  aid  or  can,  and  to  make 
no  engagement  contrary  to  the  Tay  treatv.  (Foreign  Relations,  vol 
2,  p.  306.) 

The  Secretary  of  State  said,  in  his  instructions : 

Instead  of  relief,  instead  of  justice,  instead  of  indemnity  for 
past  wrongs,  our  very  moderate  demands  have  been  immediately 
followed  by  new  aggressions  and  more  extended  depredations, 
while  our  ministers,  seeking  redress  and  reconciliation,  have  been 
refused  a  reception,  treated  with  indignities,  and  finally  driven 
from  its  territories.  This  conduct  .  .  .  would  well  have 
justified  an  immediate  declaration  of  war,  but  ...  the 
United  States  contented  themselves  with  preparations  for  de- 
fense, and  measures  calculated  to  protect  their  commerce. 

At  the  close  of  his  instructions  the  Secretary  sets  out  certain  points 
to  be  considered  as  ultimata,  of  which  the  following  only  is  now  im- 
portant : 


252  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

1.  That  there  be  established  a  board  to  determine  the  claims  of 
our  citizens,  which  France  should  bind  herself  to  pay. 

Having  carried  the  history  of  the  claims  down  to  this  point  let  us 
look  back  upon  it  and  see  what  rights  we  had  at  that  time  as  against 
France,  laying  aside  for  the  moment  certain  defenses  set  up  by  the  de- 
fendants, such  as  the  existence  of  war  and  the  abrogation  of  the  old 
treaties.  Apart  from  these  points,  which  have  been  urged  upon  us 
with  great  ability  by  the  learned  counsel  for  the  Government,  were  the 
claims  at  the  opening  of  the  negotiations  in  1800  valid  international 
obligations  against  France? 

That  nation  had  seized  upon  the  high  seas  neutral  vessels  laden  with 
neutral  cargo.  In  the  case  at  bar,  for  example,  the  American  schooner 
Sally,  owned  by  citizens  of  the  United  States,  commanded  by  a  citizen 
of  the  United  States,  duly  registered  under  the  laws  of  the  United 
States,  bound  from  Massachusetts  to  Spain,  laden  with  cargo  belonging 
to  American  citizens,  was  seized  upon  the  high  seas,  taken  into  a 
French  port,  condemned  and  confiscated  for  the  benefit  of  the  priva- 
teer which  seized  her;  and  all  this,  not  upon  the  gfround  that  she  had 
violated  the  law  of  nations,  but  because  she  had  violated  the  French 
regulations  "concerning  the  navigation  of  neutrals."  It  seems  hardly 
necessary  to  discuss  the  proposition  that  such  a  proceeding  was  unwar- 
ranted :  the  French  themselves  admitted  it  in  their  decrees  and  corre- 
spondence; the  Russian  Czar,  in  ordering  his  admiral  to  pursue  n 
similar  course,  said  it  was  not  "strictly  conformable  to  the  natural  la\v< 
of  war."  England  paid  for  damages  thus  committed,  as  did  Spain, 
which  had  countenanced  the  acts  of  French  consuls  in  condemnin,: 
American  vessels  brought  into  Spanish  ports.    (Treaty  of  1819.) 

Senator  Livingston,  in  the  Twenty-first  Congress,  first  session,  said. 
in  the  report  made  by  him : 


The  committee  does  not  recollect  that  the  justice  of  the  claims 
has  ever  been  denied.  ...  To  deny  [it]  would  be  assertion 
of  a  right  on  the  part  of  France  to  indiscriminate  plunder  of  neu- 
tral property.  .  .  .  But  the  justice  of  the  claims  was  not 
denied,  and  the  necessity  of  providing  indemnity  was  expressly 
acknowledged. 

This  is  true  as  a  matter  of  pure  international  law ;  how  much  more 
true  is  it  in  the  face  of  a  treaty  which  guaranteed  the  protection  to 


GRAY  V.  UNITED  STATES  953 

our  vessels  (Art  6)  of  French  ships  of  war;  which  made  free  ships 
free  goods  (Art  23) ;  which  prohibited  opening  hatches  or  disturbing 
packages  when  the  vessel  had  a  passport  (Arts.  12  and  13) ;  which  d? 
rected  the  commanders  of  French  ships  to  do  no  "injury  or  dama«" 
to  vessels  of  the  United  States  (Art.  l.S) ;  and  which  co'nledX 
provisions  msunng  an  exceptional  amount  of  protection  to  our  com- 
merce and  guardianship  of  our  commercial  rights' 

.vir.  Jefferson  thought  this  class  of  claims  valid  when  he  issued  his 
circu  ar  of  August.  1793,  assuring  the  mercantile  community  thaVdue 
a  tenhon  wouW  be  paid  to  these  injuries  and  proper  proceeding! 
adopted  for  their  relief.  The  President  thought  th^  valid  wh<^ 
later  m  the  same  year,  he  wrote  to  Congress  that  due  measures  would 
be  taken  to  "obuin  redress  of  the  past  and  more  effective  provisions 
against  the  future  "  Pickering  thought  them  valid  when  he  made  thd 
settl«nent  an  ultimatum,  and  the  French  Government  thought  them 
worthy  of  consideration  when  they  proposed  a  commission  to  decide 
upon  them  coupled  with  the  counter  proposition  that  the  United 
Mates  indemnify  American  creditors  then  existing,  or  to  be  created 

whTchll?'  "'T'  °^  '^'l  <^°'""''-°"-  ^y  w»y  of  a  loan  to  France, 
M  that  country  was  to  be  pledged  to  repay.    (Doc.  102,  p.  467  ) 

•  ,if!  *''^^«''l*"t^  ~"t«^"d  that  the  seizures  were  justified,  as  war  ex- 
isted between  this  country  and  France  during  the  period  in  question; 
and.  as  we  could  have  no  claim  against  France  for  seizure  of  private 
property  m  time  of  war.  the  claimants  could  have  no  resulting  claim 
against  their  own  Government;  that  is.  the  claims,  being  invalid,  could 
not  form  a  subject  of  setoff  as  it  is  urged  these  claims  did  in  the 
second  article  of  the  treaty  of  1800.  It  therefore  becomes  of  great 
importance  to  detennine  whether  there  was  a  sute  of  war  between 
the  two  countries. 

It  is  urged  that  the  political  and  judicial  departments  of  each  Gov- 

ITTa"'^""'^  "'*'  °'^'''  ^  ^"  '^"^'"y-  »»'«*  '>^«'«  ^^ere  fought 
and  blood  shed  on  the  high  seas;  that  property  was  captured  by  each 
from  the  other  and  condemned  as  prize;  that  diplomatic  and  consular 
intercourse  was  suspended,  and  that  prisoners  had  been  taken  by  each 
Government  from  the  other  and  "held  for  exchange,  punishment,  or 
retaliation,  according  to  the  laws  and  usages  of  war."  While  these 
statements  may  be  in  substance  admitted  and  constitute  very  strong 
vidence  of  the  existence  of  war.  still  they  are  not  conclusive,  and  the 
tacts,  even  if  they  existed  to  the  extent  claimed,  may  not  be  incon- 


254 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


I  I 


sistent  with  a  state  of  reprisals  straining  the  relations  of  the  States  to 
their  utmost  tension,  daily  threatening  hostilities  of  a  more  serious 
nature,  but  still  short  of  that  war  which  abrogates  treaties,  and  after 
the  conclusion  of  which  the  parties  must,  as  between  themselves,  begin 
international  life  anew. 

The  French  isrued  decree  after  decree  against  our  peaceful  con. 
merce,  but  on  the  ground  of  military  necessity  incident  to  the  war  with 
Great  Britain  and  her  allies ;  they  refused  to  receive  our  minister,  but 
in  that  refusal,  insolent  though  it  was,  there  is  nothing  to  show  tha' 
war  was  intended,  and  the  mere  refusal  to  receive  a  minister  does  not 
in  itself  constitute  a  ground  for  hostilities. 

The  Attorney-General,  Mr.  Lee,  in  August,  1798,  very  strongly  sus- 
tained the  defendants'  position,  for  he  wrote  the  Secretary  of  State 
that  there  existed  with  France  "not  only  an  actual  maritime  war."  but 
"a  maritime  war  authorized  by  both  nations ;"  that  consequently  France 
was  an  enemy,  to  aid  and  assist  whom  would  be  treason  on  the  part  of 
a  citizen  of  the  United  States ;  but  we  can  not  agree  that  this  extreme 
position  was  authorized  by  the  facts  or  the  law. 

Congress  enacted  the  various  statutes  hereinafter  referred  to  in  He- 
tail,  and  when  one  of  them,  the  act  providing  an  additional  armament, 
was  passed  in  the  House,  Edward  Livingston,  who  opposed  it,  said: 

Let  no  man  flatter  himself  that  the  vote  which  has  been  given 
is  not  a  declaration  of  war.    Gentlemen  know  that  this  is  the  case. 


Those  were  times  of  great  excitement ;  between  danger  of  interna- 
tional contest  and  the  heat  of  internal  partisan  conflict  statesmen  could 
not  look  at  the  situation  with  the  calmness  possessed  by  their  succes- 
sors, and  those  successors,  with  some  exceptions  to  be  sure,  regarded 
the  relations  between  the  countries  as  not  amounting  to  war. 

The  question  has  been  carefully  examined  by  authorized  and  compe- 
tent officers  of  the  political  dq)artment  of  the  Government,  and  we  may 
turn  to  their  statements  as  expository  of  the  views  of  that  branch  upon 
the  subject. 

In  1S27  Senator  Holmes  reported  that  there  had  been  "a  partial 
war."  but  no  "such  actual  open  war  as  would  absolve  us  from  treaty 
stipulations.  ...  It  was  never  understood  here  that  this  was 
such  .T  war  as  would  antinl  a  trontv."  ClQth  Confr..  2d  sess..  Senate 
Ren..  Feb.  8.  1827.  n.  8.1 


GRAY  V.  UNITED  STATES 


255 


Mr.  Giles  reporting  to  the  House  of  Representatives  as  early  as 
1802  called  ,t  a  partial  state  of  hostility"  between  the  United  States 
and  r  ranee. 

Mr.  Chambers  reported  to  the  Senate  in  1828  that— 

The  relations  which  existed  between  the  two  nations  in  the  in- 
terval between  the  passage  of  the  several  acts  of  Congris  before 
referred  to  and  the  convention  of  1800  were  very  pSar  bm 
m  the  opinion  of  your  committee  can  not  be  considered  as  niacin., 
the  two  nations  ,n  the  attitude  of  a  war  which  would  dSroyS^ 
obligations  of  previously  existing  treaties.  ^ 

Mr.  Livingston  reported  to  the  Senate  in  1830  that— 

r!  JI'lL"!^'  "°V*  '^'^  °^  ^^^'  ^"'^  ^^^  stipulations  which  recon- 
ciled the  two  nations  was  not  a  treaty  of  peace:  it  was  a  conveXn 

for  the  putting  an  end  to  certain  diflFerences.     .     .  NoS 

the  slightest  expression  on  either  side  that  a  state  of  war  «- 
isted.  which  wou  d  exonerate  either  party  from  the  obSions 
ot  makmg  those  indemnities  to  the  other.^  .  .  .  The  Sen- 
fo™tffer.:f V'''  ^"'"^  °^  ^^^^  negotiations  is  not  only  in  Js 
Sh  «?u  d  be  dT^r'  '7','^  °^  ^'^'''  ^""^  ''  '^^"^^i"^  stipulations 

then  they  were  n,  a  state  of  war.     (Rep.  4.  p.  445.)       ''°"'"'^'^*''' 

Mr^  Everett  made  a  statement  in  the  House  of  Representatives  on 
the  21st  February-,  1835.  in  which  he  said: 

rr^JJ!^  ''a\u"''^  '■'°'^r'''  °^  ^^^  measures  of  the  French  Govern- 

E  ^1    '  "'^r.^'^*'^  i"J""^^  ^^^^P"'  "P«"  ""■•  citizens  wouTd 
have  amply  justified  the  ^nvcrnment  of  th7  United  States  in  a 

Te  "efe°rr:d"v'nd''T'"'r"^''^^  =^"''  '"^•'^"-^  °^  ^^f-- 
ndds  i  Thir  ■  ^  •  ^^'^^  '■^^^^••'"S  to  the  acts  of  Congress,  he 
thJ'  f  I?  vigorous  acts  of  defence  and  preparation,  evincing 
Sf  Lr^^T''  "^'  ^  """'^  ^^^»"  ''-'''  dete^incd  to  proceed 
still  turther  and  ?.  to  war  for  the  protection  of  their  citizens  had 
he  happy  effect  o.  precluding  a  report  ,o  that  extreme  measure  o 


Finally,  Mr.  .Sumne-  considered  the  acts  of  Congress  as  "vigorous 
TJ^sures,  puttmg  the  coun  -y  "in  an  attitude  of  defense:"  and  that 
tne     pa.nfu!    condition    of    thing.,    th-u^h    naturally    causing   great 


256 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


^! 


-  ^^ 


anxiety,  did  not  constitute  war."  (38th  Cong.,  1st  sess.,  Rep.  41,  1864.) 
The  judiciary  also  had  occasion  to  consider  the  situation,  and  the 
learned  counsel  for  defendants  cites  us  to  the  opinion  of  Mr.  Justice 
Moore  delivered  in  the  case  of  Bus  v.  Tingy  (4  Dall.  37),  wherein  tli- 
facts  were  as  follows :  Tingy,  commander  of  the  public  armed  ship  the 
Ganges,  had  libelled  the  American  ship  Elisa,  Bas,  master,  setting 
forth  that  she  had  been  taken  on  the  high  seas  by  a  French  privateer 
the  31st  March,  1799  and  retaken  by  him  late  in  the  following  April, 
wherefore  salvage  was  claimed  and  allowed  below  Upon  appeal  the 
judgment  was  affirmed.  Each  of  the  four  justices  present  delivered 
an  opinion. 

Justice  Moore,  answering  the  contention  that  the  word  "enemy" 
could  not  be  applied  to  the  French,  says : 

How  can  the  characters  of  the  parties  engaged  in  hostility  ■ 
war  be  otherwise  described  than  by  the  denomination  of  enemies.- 
It  is  for  the  honor  and  dignity  of  both  nations,  therefore,  they 
should  be  called  enemies ;  for  it  is  by  that  description  alone  that 
either  could  justify  or  excuse  the  scene  of  bloodshed,  depredation 
and  confiscation  which  has  unhappily  occurred,  and  surely  Con- 
gress could  only  employ  the  language  of  the  act  of  June  13,  179^^'. 
towards  a  nation  whom  she  considered  as  an  enemy. 

Justice  Washington  considers  the  very  point  now  in  dispute,  saying 
(p.  40) : 

The  decision  of  this  question  must  depend  upon  .  . 
whether  at  the  time  of  passing  the  act  of  Congress  of  tlie  2d  of 
March,  1799,  there  subsisted  a  state  of  war  between  wo  nations. 
It  may,  I  believe,  be  safely  laid  down  that  every  contention  by 
force  between  two  nations,  in  external  matters,  under  the  authority 
of  their  respective  Governments,  is  not  only  war,  but  public  war. 
If  it  be  declared  in  form  it  is  called  solemn  and  is  of  the  ix>rfect 
kind,  because  one  whole  nation  is  at  war  with  another  whole  na- 
tion, and  all  the  members  of  the  nation  declaring  war  are  author- 
ized to  commit  hostilities  against  all  the  members  of  the  other  m 
every  place  and  under  every  circumstance.  In  such  a  war  all  the 
members  act  under  a  general  authority,  and  all  the  rights  and  con- 
sequences of  war  attach  to  their  condition.  But  hostilitios  ma> 
subsist  between  two  nations  more  confined  in  its  nature  and  ex- 
tent, being  limited  as  to  places,  persons,  and  things,  and  thi>  is 
more  properly  termed  imperfect  war.  because  not  solemn,  ani 
because  those  who  are  authorized  to  commit  hostilities  act  under 


GRAY  V.  UNITED  STATES 


257 


..a 


"I  . 

■  .n'^'r 


special  authority  and  can  g-^  no  further  than  to  the  extent  of  their 
commission.  Still,  however,  it  is  public  war,  because  it  is  an  ex- 
ternal contention  by  force  between  some  of  the  members  of  the 
two  nations,  authorized  by  the  legitimate  powers.  It  is  a  war  be- 
tween the  two  nations,  though  all  the  members  are  not  authorized 
to  commit  hostilities  such  as  in  a  solemn  war  where  the  Govern- 
ment retains  the  general  power. 

Applying  this  rule  he  held  that  "an  American  and  French  armed 
ve'    •    e.  "bating  on   the  high   <eas,  were  enemies,"  but  added  that 

-  not  styled  "an  enemy"  in  the  statutes,  because  "the  decree 
.  '  leant  to  be  carried  on  was  sufficiently  described  without 
V     ,  or  declaring  that  we  were  at  war.     Such  a  declaration 

-  light  have  con^ituted  a  perfect  state  of  war  which  was 
I'-',  by  the  Government." 

.  hase,  who  had  tried  the  case  below,  said : 

1?  a  limited,  partial  war.  Congress  has  not  declared  war  in 
J'  ne  il  terms,  but  Congress  has  authorized  hostilities  on  the  high 
'eas  by  certain  persons  in  certain  ca?es.  There  is  no  authority 
g:. til  to  commit  hostilities  on  lais.l,  to  capture  unarmed  French 
vessels,  nor  even  to  capture  French  armed  vessels  in  a  French 
port,  and  the  authority  is  not  given  indiscriminately  to  every  citi- 
zen of  America  against  every  citizen  of  France,  but  only  to  citi- 
zens appointed  by  commissions  or  exposed  to  immediate  outrage 
and  violence.  ...  If  Congress  had  chosen  to  declare  a  gen- 
eral war,  France  would  have  been  a  general  enemv ;  having  chosen 
to  wage  a  partial  war,  France  was    .    .    .    only  a  partial  enemy 

Justice  Paterson  concurred,  holding  that  the  United  States  and 
France  were  "in  a  qualified  state  of  hostility"— war  "quoad  hoc." 
-As  far  as  Congress  tolerated  and  authorized  it,  so  far  might  we  pro- 
ceed in  hostile  operat'■'^ns  and  the  word  "enemy"  proceeds  the  full 
length  of  this  qu-  ^ned  war,  and  no  further. 

The  S  reme  .,  urt.  therefore,  held  the  state  of  affairs  now  under 
discussioi.  to  co-  "  ute  partial  warfare,  limited  by  the  acts  of  Con- 
gress. 

The  instructions  to  Ellsworth.  Davie,  and  Murray,  dated  October 
22,  1799,  did  not  recognize  a  state  nf  war  as  existing,  or  as  having 
exi<=ted,  for  they  said  the  conduct  of  France  would  have  justified  an 
inimediate  declaration  of  v.ar,  but  the  United  States,  desirous  of  main- 
taining peace,  contented  themselves  "with  preparations  for  defense 
and  measures  calculated  to  defend  their  comj-.t.ce."     (Doc.  102.  p. 


i^yms^t 


258 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


561.)  Yet  all  the  measures  relied  upon  as  evidence  of  existing  war 
had  taken  effect  prior  to  the  date  of  these  instructions.  So  the  min- 
isters, in  a  communication  to  the  French  authorities,  said,  as  to  the 
acts  of  Congress,  "which  the  hard  alternative  of  abandoning  their 
commerce  to  ruin  imposed,"  that  "far  from  contemplating  a  coopera- 
tion with  the  enemies  of  tlie  Republic  [they]  did  not  even  authorize 
reprisals  upon  her  merchantmen,  but  were  restricted  simply  to  the 
giving  of  safety  to  their  own,  till  a  moment  should  arrive  when  their 
sufferings  could  be  heard  and  redressed."    (Doc.  102,  p.  583.) 

France  did  not  consider  that  war  existed,  for  her  minister  said  that 
the  suspensions  of  his  functions  was  not  to  be  regarded  as  a  rupture- 
between  the  countries,  "but  as  a  mark  of  just  discontent"  (15  Nov., 
1796,  Foreign  Relations,  vol.  1,  p.  583),  while  J.  Bonaparte  and  his 
colleagues  termed  it  a  "transient  misunderstanding"  (Doc.  102,  p.  590 ,i. 
a  state  of  "misunderstanding"  which  had  existed  "through  the  acts  of 
some  agents  rather  than  by  the  will  of  the  respective  'Governments,'  " 
and  which  iiad  not  been  a  state  of  war,  at  least  on  the  side  of  Franci-. 
(IbiJ.bie.) 

The  opinion  of  Congress  at  the  time  is  best  gleaned  from  the  law^ 
which  it  passed.  The  important  statute  in  this  connection  is  that  of 
May  28.  1798  (1  Stat.  L.  561)  entitled  "An  act  more  effectually  to 
protect  the  commerce  and  coasts  of  the  United  States."  Certainly 
there  was  notliing  aggressive  or  warlike  in  tiiis  title. 

The  act  recites  that,  svhereas  French  armed  vessels  have  comniittel 
depredations  on  .\merican  commerce  in  violation  of  the  law  of  na- 
tions and  Ireatifs  lictwci-ii  tlie  United  States  and  France,  the  President 
is  authorized — not  to  decia.e  war,  but  to  direct  naval  commanders  lu 
brine  into  our  ports,  to  be  nrcctcde<l  against  according  to  the  law  of 
nations,  any  such  vessels  "-.vl.ich  shall  have  committed,  or  which  shall 
Ik-  found  hovering  on  the  coasts  of  the  Uniteo  States  for  the  purpose 
of  coniniitting.  depredations  on  the  vesse.-.  l)elonging  to  tlie  citizens 
tilcrenf :  and  also  to  retakr  any  sliip  or  vessel  of  anv  citizen  or  citi- 
zens of  the  I'liiteil  Sirilcs  which  mav  liave  been  captured  bv  anv  such 
aniu'il  V.  <w(.1  '' 

This  law  contains  no  declaration  or  threat  of  war:  it  is  distiiictlv  .n 
act  to  profiTt  our  coasts  and  connncrce.  It  says  that  our  \cssels  niav 
.•irri->;t  .1  vessel  raiding  or  imcii'linir  to  rail!  upon  that  commerce,  rind 
tli.il  suib  vts>,el  vlinll  not  !»■  ciilicr  bcM  bv  cxccnfivc  antlinrity  or  con- 
6s,-ntcd.  but  turned  over   to  the  .idmir.iUv  courts— rcrotjriized   inter- 


GRAY  V.  UNITED  STATES 


259 


national  tnbunals-fcr  trial,  not  according  to  municipal  statutes  as 
was  being  done  in  France,  but  according  to  Uie  law  of  nations  Such  a 
statute  hardly  seems  necessary,  for  if  it  extended  at  all  the  police 
powers  of  naval  commanders  upon  the  high  >eas  it  was  in  the  very 
slightest  degree,  and  it  is  highly  improbable  that  then  or  now,  with  or 
without  specific  sututory  or  other  authority,  an  American  naval  com- 
mander would  m  fact  allow  a  vessel  rightfully  flying  the  flag  of  the 
Lnited  States  to  be  seized  on  the  high  seas  or  near  our  coasts  by  the 
cruiser  of  another  Government.  Uut  if  the  act  did  enlarge  the  power 
of  such  officers,  and  give  t.-  them  authority  not  theretofore  p<issessed 
It  tied  them  down  to  sp«.xificd  acti.m  in  regard  to  specified  vevs.K 

They  might  seize  armed  vessels  only,  and  only  those  armed  vessels 
which  had  already  committed  deprclnti.Mis.  „r  those  which  were  on 
our  cr.ast  for  the  purpose  of  committing  depredations,  and  they  might 
retake  an  Amrriran  vessel  captured  by  such  an  arme.l  vessel  This 
statute  IS  a  fair  illustration  nf  ,1h>  cla-  of  laws  cnacte«l  at  this  time- 
they  directe^l  suspension  of  commerrial  relations  until  the  end  of  the 
next  session  of  Congress,  not  indefinitely  (  June  1.^,  1798  ibid  §  4  p 
5fif,»:  they  gave  power  to  the  Presidom  to' apprehend  the  subjects' of 
hostile  nations  whenever  l,r  .hould  make  "public  pmclamation"  of  war 
(July  6,  1798.  ibid.  577).  and  no  such  procla.r.ation  was  made-  thev 
gave  hini  authority  to  in>.tnict  our  armed  vessels  to  sei^e  French 
"anned."  not  merchant,  vessels  (July  0.  1798.  ibid.  578).  together  with 
contingent  authority  to  augment  the  army  in  case  war  shoul.l  h.eaW  out 
or  in  case  of  imminent  danger  of  invasion.  (  Nfarch  J.  179*)  ihid  725  ) 
Within  a  few  months  after  this  last  act  of  Congress  the  Ellsworth  niis- 
Mon  was  on  its  vvny  to  France  to  l^gi,,  the  negotiations  vybi.l,  rcs.iltorl 
in  the  treaty  of  ISflO  .ni.l  oven  the  .act  abroir,-,ti„ir  ,!h.  trc.-.ties  of  177s 
do,.,  not  spe.ik  of  w:ir  ,-..  existing,  but  of  "the  ^vstrni  of  pre-hiorv  \  io- 
''■'"•<•  .  .  hostile  to  the  rights  of  .t  free  nn,i  indeivnclrnl  nation  " 
(T'lly  7.  1798.  ^^(,/.  578.) 

If  war  existed  why  aiithori/e  mir  nrnie.|  v,  .-.U  fn  ^obc  Fr.-ncb 
nmied  vessels'  W'.nr  itself  gave  that  right,  .,.  ^v,.l!  .i.  the  ri-hl  to  .oi/e 
merchantmen,  which  the  statutes  did  not  prrniit  If  xvnr  existed  why 
onipower  the  President  to  apprehend  for,!-,,  .netnie.'  \V.,r  itself 
placed  that  duty  upon  him  as  .i  neress.nrv  .i,,,!  inherent  it.cjd.nt  of 
military  command  Why,  if  there  was  war,  .IvmiM  n  .ns,H.„sion  of 
<-"mmerciaI  mterconr.e  be  authori/erl.  for  «h,-,t  more  complete  mis- 
pen.ion  of  that  interrourse  could  th<Te  I-  th.m  the  ven-  fact  ..f  war' 


mm  no  wiH  iin  i  F   h,    <    v   tTir 


260 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


And  why,  if  war  did  exist,  should  the  President,  so  late  as  March,  1799, 
be  empowered  to  increase  the  army  upon  one  of  two  conditions,  viz., 
that  war  should  break  out  or  invasion  be  imminent,  that  is,  if  war 
should  break  out  in  the  future  or  invasion  become  imminent  in  the 
future  ? 

Upon  these  acts  of  Congress  alone  it  seems  difficult  to  found  a  state 
of  war  up  to  March,  1799,  while  in  February,  1800,  we  find  a  statute 
suspending  enlistments,  unless,  during  the  recess  of  Congress,  "war 
should  break  out  with  France."  This  is  proof  positive  that  Congress 
did  not  then  consider  war  as  existing,  and  in  fact  Ellswortli,  Davie,  and 
Murray  were  at  the  time  hard  at  work  in  Paris.  In  May  following 
the  President  was  instructed  to  suspend  action  under  the  act  providing 
for  military  organization,  although  the  treaty  was  not  concluded  until 
the  following:  September. 

This  legislation  shows  that  war  was  imminent ;  that  '^'  ^tection  of 
our  commerce  was  ordered,  but  distinctly  shows  that,  •  opinion  of 

the  legislature,  war  did  not  in  fact  exist. 

VVheaton  draws  a  distinction  between  two  classes  of  war,  saying; 

A  perfect  war  is  where  one  whole  nation  'u  nt  war  with  annthir 
nation,  and  all  the  members  of  both  nations  are  authorized  to  com- 
mit hostilities  against  all  the  members  of  the  otlier.  in  every  casi . 
and  under  every  circumstance  permitted  by  the  general  laws  oi 
war.  An  imperfect  war  is  limited  as  to  places,  person^,  an. I 
thing'  [to  which  the  editor  adds:]  Such  were  tiie  limited  hostili- 
ties auilK'ri.rcd  by  the  I'nited  States  agamst  France  in  l/'S 
(Lawrence's  Wheaton,  518.) 

There  was  no  (Icii.iratioii  of  war;  the  tribunals  of  each  country  •en 
open  to  the  uliier  ,m  imiiossihility  were  war  in  progress;  dipluni.itu- 
an!  commercial  intercourse  werr  adnnttedly  suspended;  but  ilurini,' 
many  year>  there  was  no  iiucrrourso  between  Eiigland  and  Mexico, 
which  were  not  at  war;  there  was  retaliation  and  reprisal,  but  such  re- 
taliations anti  reprisals  Jiavc  often  occurred  between  nations  at  [)eacc 
there  was  a  near  approach  to  war.  hut  at  r"  time  was  one  of  the  ii.t- 
tions  turned  into  an  enemy  of  th»-  ther  in  such  manner  that  cvciy 
citizen  of  the  one  tiecanie  the  enemy  of  every  citi/en  of  the  other, 
finally,  there  was  not  th.Tl  kind  of  war  whidi  ahropatetl  treaties  ati'l 
wiped  out.  at  loait  teinporarity.  all  pending  rights  .^nd  contracts,  ituli 
vidual  and   national 


*1 


GRAY  V.  UN'ITED  STATES 


261 


In  cases  like  this  "the  judicial  is  bound  to  follow  the  action  of  the 
political  department  of  the  Government,  and  is  concluded  by  it" 
{Phillips  V.  Payne,  92  U.  S.  130)  ;  an<l  we  do  not  find  an  act  of 
Congress  or  of  the  Executive  between  the  years  1793  and  1801  which 
recognizes  an  existing  state  of  solemn  war,  although  we  find  statutory 
provisions  authorizing  a  certain  course  "in  the  event  of  a  declaration 
of  war,"  or  "whenever  there  shall  be  a  .leclared  war,"  or  during  the 
existing  "differences."  One  act  provides  for  an  i, crease  of  the  army 
"m  case  war  sliall  break  out,"  while  another  restrams  this  increase 
"unless  war  shall  break  out."  (1  Stat.  I..  558.  5/7.  725.  750-  see  also 
acts  of  Feb.  10.  1800,  and  lUay  14.  ISOO.  i 

We  have  already  referred  to  the  instructions  of  iho  l-.xecutive  which 
show  that  branch  of  the  Government  in  thorough  accord  with  the 
legislative  on  this  subject,  and  the  negotiations  of  our  representatives 
hereinafter  referred  to  were  marke.l  by  the  same  views,  while  the 
treaty  itself-a  treaty  of  amity  and  commerce  of  limited  .luration— is 
strong  proof  that  what  were  called  "diflFcrences"  did  rot  amount  to 
war.  We  are,  therefore,  of  opinion  that  no  such  war  existed  a«  oper- 
ate.! to  abrogate  treaties,  to  -uspeiid  private  rights,  or  to  authorize 
indiscriminate  seizures  and  condemnations ;  that,  in  short,  there  was 
no  public  general  war.  but  limited  war  in  its  nature  similar  to  a  prc- 
longed  series  of  reprisals. 

Ihe  Rencral  effect  and  purpose  of  the  treaty  of  1800  can  lie  clearly 
Kleane<l  from  the  negotiations  preceding  its  signature,  which  will  next 
be  considered. 

The  treaties  of  1778  provided  that  French  men-of-wat  hould  pro- 
tect uur  ve^sel,  and  citizens  (Treaty  of  Commerce,  Art.  b)  ;  that  our 
m(rch.intmen  having  pas^i^^rts  and  certificafes  showing  their  .aigoes 
not  to  be  otmtraband  should  not  have  their  hatches  opene<l,  their  pack- 
ages disturbed,  or  the  "smallest  parcels  of  uoo.ls"  removed  (Art=,  12 
anrl  13):  that  a  French  maii-.^f-war  meetiiiK  ,in  American  merch.mt- 
tnan  should  remain  out  of  cannon-slmt.  and  send  on  board  not  more 
than  three  men.  when,  should  the  men  h.nifman  lia\e  a  passport  he 
micht  proceed  (Art  27 ^  freedom  .,f  trade  wa^  nrured  and  contra- 
band defined. 

S.Min  after  the   French   rrvn1ii(if„i 


nimnu-rrr  ',o-an.  at  fir'-t  veil 


!eil  iii!>l 


<vss;,rv    >.elf  d'fen-p.    coupled    with 


tlic  series  of  attacks  hikii  o,ir 
''•  .•\(-iT-e  rif  mi-fako.  the:,  of  a 
pr.in-       ..f     <>m[>ensation.   and 


2f>2 


Jl'DGMENTS  OF  THK  COURT  OF  CLAIMS 


fiiiallv  oi>eii  ami  iiiulisgiiised.  First  it  was  said  that  the  seizures  were 
accidental,  as  the  two  Engliih-speaking  nations  could  not  be  distiti- 
guishetl  l)y  the  French  sailor^ :  socm  after  all  neutral  vessels  laden  with 
provisions  and  hound  t<>  an  enemy's  iK)rt  were  ordered  seized  as  a  war 
measure,  hut  conijH-nsatinn  was  promised ;  and  it  was  then  that  the 
President  ;ind  Secretary  of  State,  having  already  issued  the  proclama- 
tion of  neutrality,  which  greatly  incensed  France,  voluntarily  promised 
protection  and  redres-;  to  citizens  of  the  United  States  thus  injure  1 
hy  ur  former  allv.  At  tlii-  point,  therefore,  we  have  on  Ixjth  side- 
an  .idniis^ion  of  the  validity  .'f  clamK  arising  from  the  siwliatimis- - 
the  ['resilient.  ;n  the  prodamat'oii  and  circular  letter,  tlie  French,  in 
their  decrees,  as  well  a-^  in  .1  letur  ti>  the  Secretary  of  State  (  Match 
27.  1"'>4).  in  which  the  French  ;i'inister  wrote  that  "If  .any  of  ymi; 
merchants  have  suffered  any  iniiiix  hy  the  conduct  of  our  ])rivateer- 
they  mav  with  confidence  .nldress  themselves  to  the  Ireiivl' 
'  ;<  \(rnnn  tit."  iDnc.  !"_>.  \>  2(4.  1  Nearly  four  months  later  t!ic 
I'Vencli  cimimi--i(iiier  ••<  t'oreiL'ti  rel.itions  informed  our  minister  lliit 
there  -lionld  not  be  a  dotiht  of  the  di-i>osiiion  of  the  convention  .1  ;,! 
(iiiveniMi.nt  to  "m.-ike  -ood  the  los-c-  which  circumstance^  inseparali' 
fron;  .  irril  rrvdhrcn  niav  !ia\i  cau^e<l  some  \merican  navii^'at'  • 
to  iM. f-1.  !i.-f."    i  JmIv  .^.  ir''4:  /''/(/.  77  1    Then  c.imc  (ienet''^  i!is!ni--:i; 


...  ni 
:re-- 


1.1  M. 


ill' 


nccceiiMii' 


M. 


rn- 


scrll 


i.'.l  t. 


nil'',  thit  \\;i-hini;t":i  announced  to  <  "n 
1I  lie-e  c'.iini.-  .iri'  ni  .1  tr.ain  of  hein-,^  ili- 
adinvtci."     iW'.iit'-  Amcriciti  ^tit 


!a\     ■ 

lvi\''  jT' '•:re--c.!  -i>  -^ucci 
jrn--  -rF, '.    :n.  17""  ,,  ■i!' 
cn«-ed  u'tl:  I'lnd"'.  .ind     niicat 
I'.il'r--.    ■  oi      V    n     i02   I 

'ill,-  I.e.  Mf.in  r'i'  '".'".  ■"Inn'.,'cil  the  -ititatioTi  ■  France  \iolrril'. 
reni"'!-<r  itr.l,  treated  Motu."-  »v!lh  in-nlf.  refu'^ed  to  rereue  I'iiu-I<!i'-> 
t!-.r.-\\  otV  the  ^i-i  rc-tr,ii!ir-  upon  i|.  cru-cr-  .m.!  privateers,  and  it- 
00!.. 111.  1  .it;<!it^  'oiiicd  with  -o  nnu  h  \ii;i.r  in  the  illeijal  attack  tim.n  . 
iK-a'Tfti!  I'c'itral  .o-  ipicici-,  tli.'t  "  Xnierii  111  ve>^eK  no  longer  erlcr,.' 
llv    Frf'.li  !«ir1--  iin'e^-  cirri.'  '  mi  t.>.   for;-,   '■     i  I V  „■    lli2.  pp   4').  4^"   1 

In-t  I  onii'.iM't  u.!-  not  howev.r.  .  ontnii  d  lo.^iu'  -.de.  tor  we  lii  ! 
f.-ii'i-i'  Ml  f.iTt  iiMai'c.  .f  oliIi'/-ati.in-  miiiiom  .1  nimn  11-  hv  tlic  trc'iti.- 
of  I""'*  We  'i.'id  itiidert.iWet)  ;t  (.ni.iratit v  of  Fr(Mi.!i  pns-c--ioM-  in 
\nieri.;i  imt  p\  d'.-ed  or.r-el\ik  ilia'  "ni  ii-e  .f  1  nilitarr  h.turc-- 
Franri-   nn.'    Fii'dand   tite   reciprocal    i^narantv  .-It.a'l   ln\e  it- 

fiill   f    ■■■'■    i"d  .  'T.  ,  t  thr  ni.iii'cn-   -nrli  u   ir     Ird'  hriTik  f  lit  "      (   \''     '  ^ 


GRAY  V.  UNITED  STATES 


263 


Treaty  of  Alliance.)  This  guaranty  was  to  endure  "forever."  It 
was  contended  by  us  that  the  casus  fccderis  could  never  occur  except 
m  a  defensive  war.    As  Secretary  Pickering  said: 

The  nature  oi  this  ohiigation  is  u.i,lerst.K,d  to  be  that  when  a 
war  really  and  truly  defensive  exists  ,hc  engaging  nation  is  bound 
o  furn,sh  an  effectual  and  ade,,„:ue  defens,.,  in  coofx-ration  with 

I^J^lSyT^^W'"'-   '''■  "■  ''''  '"'''-'^''^  ''-*--^' 

Whether  the  treaty  >o  limitd  the  obligation,  or  whether  France 
m  her  struggle  with  the  alli.d  ,,„wer.s  uas  waging  a  defensive  war. 
.^  not  now  .mix.rtant.  France  certainly  believed  herself  entitled  to 
demand  our  aid.  an.l  underwood  the  ..,.v,,.  /,r,/rM..  to  have  occurred 

At  the  opening  of  the  war  France  po^ses^ed  the  fertile  islands  of  St' 
Domingo.  Martinique,  (.uadelo,,,...  St.  F.ucin.  .^t.  \-incent,  Tobago 
Deseada,  .\  anegalante.  St.  i'icrre.  M„,uelo„,  and  Grena.la.  with  a 
colony  on  the  mainland  at  t  ax.nne,  and  "in  litt:,-  more  than  a  month 
th..  I-rench  ^vere  entirelv  d,spo.se-~ed  of  their  West  India  ix^s.se.sions 
with  hardly  any  ;,,..  to  the  vKioriou-  nation."  ( Ali.son's  History  vol' 
.'.  p.  ^9t).)  ^' 

The  t'-rcnch  col,  lii^t.  wx^.\  n-  m  nitervene.  hut  the  French  Govern- 
mem  thought  ,t  uiMT  for  u.  not  then  to  embark  in  the  war.  as  it 
:;ii''!il  .hniniish  their  s.„.plip.  from  .\merica  :  thev  wouM,  however  thev 
said  leave  us  to  act  accnlin;;  t.,  o„r  ui^hes.  Im.king  to  us  meantime 
f  r  tin;itK-i;il  .-iid.  .  ForeiKU  Relation-^,  vol.  1.  p.  r,SX.  >  Thi^  was  not 
.1  r.nmiciation  of  the  guarantv .  nor  was  it  so  regarded  here. 

A  ^tudy  of  the  r  .rre^pondena-  show,  that  the<e  provision,  of  the 
two  treaties.  ,.sp«-ial!y  the  .^uarantv.  con^tantlv  hampered  our  minis- 
terc.  ...nd  lefT.-ro.n  -ail  he  had  no  d^ubt  •'w,.  '-■.uiM  interix,se  at  the 
pnu,e,-  „„,'■      letrer.npv   ^y^^^^^    ^,,_^,    _,    ^,    ,^,^^  ^^.^^.^^  ^^^^  ^^^^^^^ 

.-u-rnment  dwelt  ui^  .,  the  •■inexectttinn  of  the  treaties"  {Foreign  Re- 
,nf.:M..  ,,,1  ],  .,  r,-^,^)^  ^.j-,,  ..„^^^.  ,^^  ,  ^^^^^  ,|^  _^^^^^  ^^^  o.mrilaim  against 
"^  <)'.„/  ,M),  and  tinallv  refused  to  receive  Pincknev  -.inti!  after  a 
i.par,,t;,.n  ..»  uT'evn-.v-,"  while  iheir  nim-.T  here  demanded  "in  the 
n.ime  of    \.,„.nr:.n  bop.  r.  i-,  the  name  nf  i'-e  faith  .,f  the  treaties,  the 


exi^lonv  ,-.nd  wirrh  Franre  recnr,I,d  .,■  •';.  -.'..dt-e  of  the  moq  .acred 
I'ni.'t,  hetwern  Iwn  ,H-or>le  the   fr.-e-t  m>..  ennh  "     /  Forei-r,,    .\ffnirs 


\r,!      1 


tin 


7<^  rt  .<r.'  ) 


264 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


The  claims  of  France,  national  in  their  nature,  were  thus  set  up 
again  against  the-  claims  of  the  United  States,  individual  in  their  in- 
ception, but  made  national  by  their  presentation  through  the  diplomatic 
department  of  the  liovernment. 

It  is  not  for  us  to  say  whether  the  claims  of  France  had  any  validity 
in  international  law.  because  for  the  purpose  of  this  ca.«e  it  need  only 
be  observed  that  they  were  urged  in  diplomacy  with  every  apparent 
belief  that  the  French  position  was  tenable.  Whether  valid  or  not  they 
were  an  efficient  arm  of  defense  against  our  contentions,  and  were 
so  used  with  ability,  skill,  and  success.  In  fact  there  is  a  recognition 
of  apparent  justness  in  these  demands  found  in  the  instructions  to  the 
Pinckney  mission,  who  were  directed  while  urging  our  claims  to  pro- 
pose a  substitute  for  the  mutual  guaranty  "or  some  modification  of  it.' 
as  "instead  of  troops  or  ships  of  war"  "to  stipulate  for  a  moderate  sum 
of  money  or  quantity  of  provisions,"  to  be  delivered  in  any  future 
defensive  war  "not  exceeding  $200,000  a  year  u.  'ng  any  such  war " 
(Foreign  Relations,  vol.  2,  p.  155),  and  Talleyrand,  on  the  other  siilc, 
told  Mr.  Gerry  (June  15)  that  the  Republic  desired  to  be  restored  to 
the  rights  which  the  treaties  conferred  upon  it,  and  through  tlie>e 
means  to  assure  the  rights  of  the  United  States.  "You  claim  indem 
nities."  he  said;  wc  "equally  demand  them,  and  this  disposition  bciiiK 
as  sincere  on  the  part  of  the  United  States  as  it  is  on  its  (the  Republu  i. 
will  speedily  remove  all  the  dirticiiities  "     (  Doc.  102,  p.  529.) 

Such  was  the  situation  when  the  Ellsworth  mission  arrived  in  France 

The  instructions  to  tiiis  legation  directed  them  as  an  "indispensable 
condition'"  to  obtain  full  eonnH-nsation  for  all  losses  and  damages  sus- 
tained by  citizens  of  the  United  States  from  irregular  or  illegal  can- 
tures  or  eonilenmations. 

The  French  representatives  did  not  dispute  the  validity  of  the  cl.iim-. 
but  stood  upon  the  treaties  of  1778.  To  their  opening  proiK)sitioi!- 
the  .Vmencaii  envoys  received  a  courteous  resjKinsc,  which,  however, 
put  a  new  (ihase  upon  the  nepotiation,  and  placed  them  in  a  mo-t  cn\- 
barnssjn^  position.  Bonaparte  and  his  colleagues  ■>au\  in  sul)>t;inv 
(6  Mav.  18(X),  Doc,  102.  p.  .=190)  :  The  discharge  of  damages  l«-t.\ec-. 
the  two  ii.itioiis  resnltinij  from  the  "trnnsient  misunderstanding;"  i:; 
be  "consideretl  only  as  a  ronsecpience  of  the  inter])retation"  gi'.  en  'v 
mutual  lonscnt  to  the  treaties  They  .igreed  "u[>on  the  exi>ei!ien.  •. 
.)f  >-iMin«-n-atioti,"  and  -ugije'-lecl  that  the  discussion  h.td  heronie  *■  :• 
tined  to  twi  points,  the  [)riiui|ilfs  «hir!i  ouijitt  to  i;mv(  ri<  thi'  ;>o':t- 


.'■1«SSt'Xl*'. ::>:.„  .-J 


GRAY  V.  UNITED  STATES 


265 


and  commercial  relations  of  the  two  countries  and  the  most  suitable 
form  for  liquidating  and  discharging  the  indemnities  due     The  ex- 
amination of  principles  should  come  first  in  order,  they  said    for  "in- 
demnification can  only  result  from  an  avowal  violation  of  an  acknowl- 
edged obligation."  and  an  -agreement  upon  principles  can  alone  assure 
peace  and  maintam  friendship."    The  French  ministers  then    alluding 
to  the  treaties,  referred  to  the  second  article  of  the  draft  submitted 
by  the  Americans,   which    provided   that   the  commission    suggested 
should  decide  claims  ••conf..rmably  to  justice  and  the  law  of  nation. 
*nd  in  all  cases  of  complaint  prior  to  the  7th  of  July,  1798  they  should 
pronounce  agreeably  to  the  treaties  and  consular  convention  then  ex- 
isting between    France   and   the   United   States."     \ow   this   second 
art.de  ot  the  draft  applied  ..nly  to  claims  of  citizen,  of  each  country 
v.h.ie  July  7.  1798.  was  the  date  of  the  act  of  Congress  annulling  tlie 
treaties;  but  the  French   ministers   ignoring  this  said  that  they  saw 
no  reasons  for  the  distinction,  as  the  treaties  and  convention  are  "the 
only  toundations  of  the  negotiations;'  that  from  them  arose  the  mi;;- 
nnderstanding.  and  upon   their,  "union  and   friendship  should  be  es- 
tablished'; and  they  thus  Mgn.ficantly  o.nchuled ;  "When  the  under- 
-:gned  hastened  to  acknuwiedgc  tl:e  prinnpl,-  ;{  comr,ensation.  it  was 
in  order  to  give  an  unequivocal  evidence  of  the  fidelitv  of  the  French 
Oovemment  to  it<  ancient  -ngasren^ents.  everv  pecuniar^'  stipulation 
afi^anng  to  it  expedient  a-  a  consequence  of  ancient  treaties    and 
HM  as  the  preliminary  of  a  new  one."     So  the  French  were  planted 
'ouarely  on  the  treaties  which  the  .American-  were  f.  rbidden  to  con- 
s.ler  a,  ex-sting  after  July.  I-9S.     Two  d.iys  hter  our  ministers  ex- 
plained their  position   (ib^d.  592,.  and  nine  dav^  later  wrote  to  the 
becreurv-  of  State  Hhid.  607,  that  their  succe-s'was  still  d  .ubtfu!    as 
the  -French  think   it   hard   t,  indemnifv    for  vi  latinrr  enjagemr^nts 
K.ess  they  can  thereby  be  renored  to  the  !>e.iefi;-  nf  th^  "     Soon 
fn.l.nved  a  conference  between  the  plenirv  tenf  irics,  wh.-n  the  nego^ia- 
tor,  .,ere  brought  to  a  hnlt,  as  no  furt'-e,-  r  r-^re-.  r,-,nd  he  had  -mtil 
•.'.-    powers'or  •■ii-truction."  forthe  f.      ^^r,r,^  ,.,^1  ro '-v,- been 


't-f'l  -vn.  nvmouslv    wore  --e.-f-.vH  fr.  m  '"  ■■  ! 
T'-"    French    ministers    !  a^l    frequent'-.     -• 
'-''ii.-n.-nce   of   their  Gnvemmrn:   to    ^\:r-r-. 
■'sstire',  t  .    r  -n  the  "commercMi  treatv  -f  K 

The  equivalent  a!!e?ed  to  he  a<-    ■'•■i.  • 
'Jtior.  the  meritorious  ground  .-n  .wi;.  h  - 


nfj    tiv-    jn-!i;)f.ml.!e 
'hf-   .I.nm   to  priority 

t '  r  tT  1  »-i  rr  ■ 

irenerally  rrpre^cntcd 


266  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  treaty  stood,  detiying  strenuously  the  power  of  the  American 
Government  to  annul  the  treaties  by  a  simple  legislative  act ;  and 
always  concluding  that  it  was  perfectly  incompatible  with  the 
honor  and  dignity  of  France  to  assent  to  the  extinction  of  a  right 
in  favor  of  an  enemy,  and  as  much  so  to  appear  to  acquiesce  in 
the  establishment  of  that  right  in  favor  of  Great  Britain.  The 
priority  with  respect  to  the  right  of  asylum  for  privateers  anil 
prizes  was  the  only  point  in  the  old  treaty  on  which  they  had 
anxiously  insisted,  and  which  they  agreed  could  not  l)e  as  well 
provided  for  by  a  new  stipulation.     (Doc.  102,  p.  TiOiS.) 

Tlu-  .American  envoys  (July  23,  1800),  in  answer  to  the  French  ar- 
fjtinieiits.  reducing  to  writing  the  substance  of  two  conferences,  said 
(Doc.  102,  p.  612): 


.\n  to  the  proixisition  of  placing  France  witli  respect  t  •  an 
asylum  for  privateers  and  prizes,  uiHjn  the  footing  of  t'(|u.ilit) 
wiili  (Iri-at  Hritain,  it  was  remarked  that  the  right  vvhioli  i.i.l 
accrued  to  (ircat  IJrilain  in  that  respect  was  that  of  an  a-\.inii 
for  her  own  privateers  and  prizes,  to  the  exclusion  of  her  encniirs, 
wiiirefore  it  was  ])hysicalty  ini]K)ssible  that  licr  enemies  slKruM 
at  the  same  time  have  a  similar  right.  With  regard  to  il.i  ■  h- 
HTvation  that  by  the  terms  of  the  British  treaty  the  rij,'lit-  'f 
France  were  rescrve(l,  and  therefore  the  rights  of  (ircat  I'.ritairj 
existed  with  such  limitation  as  would  admit  of  both  natinns  Ik  mil; 
placed  on  a  footing  which  should  be  equal,  it  was  obserxe!  i' 
the  envoys  of  the  United  States  that  the  saving  in  llie  Uriii-li 
treaty  \\;.s  only  of  the  rights  of  France  resulting  from  Iter  tlu'i 
existini;  tre.ity.  .-md  that  that  treaty  havint;  ceased  to  exist,  tlu 
savintj  iiece-~arily  ceased  also,  and  the  rights  which  before  ili.l 
event  were  ■  nly  contingent  iintnediately  attached  and  iiei.mc 
o])erative. 

.Xdnii-^ion  of  the  eontinuint;  force  of  tlie  old  treatie'>  might  invoKc 
a<lniissioti  of  France  >  national  claim-,  and  in  any  event  vvDiild  p'.it 
her  inini-ters  into  a  tnost  advaiitageou-  ]iosition,  giving  them  as  coii- 
^ideration.  to  he  -urrendered  at  their  pleasure  m  the  new  negotiati  ii. 
what  would  then  he  a  vested,  exi-^ting,  and  acknowledged  right  to  tlii' 
t,'uarantee.  the  alliance,  an<l  the  u-e  of  our  jKirts.  Placed  in  this  \«<-i 
\\"U,  France  would  he  without  incentive  to  action:  ^he  would  st.irt  ii 
the  di-ctis-iion  of  a  ncvV  treaty  with  more  surrendered  to  her  at  tlie 
outset  than  she  had  hoped  to  obtain  at  the  <.  •Tieln''ion.  .iiul  all  iliit 
she  attervv.trd  gave  up  would  be  liy  w.iv  of  generous  concession    \\  liti- 


GRAV  V.  UNITED  STATES 


267 


ever  the  law.  whether  the  treaties  were  or  were  not  abrogated  by 
the  act  of  Congress  or  the  acts  of  parties,  the  American  envoys  were 
n..t  permitted  to  admit  the  French  contention,  but  were  in  dutC-  bound 
to  argue  that  the  treaties  were  without  continuing  force.  Thev  fol- 
lowed  this  course,  taying: 

on'^Dart?dS"hv'rl"'"/""  ?"'''"''•  '  ''^'''^'^"^  ^'^'^t'""  "^  '»  '- 
one  party  d  'I.  by  the  law  of  nature  and  of  nations,  leave  it  od- 

rir'd    i^  t'orf "  '"  ""°"'^r  "'"  ''''''"■'  '''  ^-''-  '«  ^^'  - 
longer  oDiigator\.     .     .     .      riie   reniamnig  party  must    decide 

whether  there  had  been   such  violation  on   the  otLr    .  -,    '!  to 

r;esuonsir"tr;r"- '""'  r ""'"--  ''"'^'""  *'  -""•■  "-"•"-" 

be  responsible  o  the  nijurcd  paay.  and  might  give  cause  for 
war,  but  even  m  such  case.  it.  act  of  ,.ublic  renunciaii  beh  e 
an  act  withm  ,ts  competence  would  not  i.o  a  void  but  a  valid  t 
and  other  nations  whose  rights  might  therebv  be  Ik  eH  iai  v" 
affected  would  s..  regard  it.     I  Doc.  102.  ],.  r,l2.)  '<^"<-'Hiaiiy 

.\fter  further  argument,  tlu-y  add.,!  that  as  i,  was  the  opinio,,  of 
the  French  nnn.sters  th.-.t  -it  did  not  c..„,pon  u„h  the  honor  of 
France  ,o  admit  the  .Vnuricm  contentions,  and  .-.t  the  same  time 
!.e  called  upon  for  cmpcnsation,  thev  offered  "as  their  last  effort"  a 
I.roposmon  which  suspended  payme-u  of  compensation  for  spoliations 
mU,I  l-raiue  could  be  put  inu.  coniplete  possession  of  the  privile-s 
she  contended  for,  an.l  at  tlie  same  time  thev  offered  to  give  that  "se- 
cuntv  nhich  a  great  pecuniary  pledge  wouhl  amoimt  to  for  her  hav- 
ing the  pr,v,lei:e  as  soon  as  it  coul.l  be  given  with  gow!  faith,  which 
might  iK-rhap.  be  in  a  little  more  than  two  years;  at  any  rate  within 
seven.       i  I  hid.  613.) 

The  French  answered  ^Doc.  102.  p.  615)  that  thev  .till  found  no 
rcnson  to  consider  the  treaties  of  177S  as  broken;  the  act  of  170S 
-emt^  'hat  of  one  party,  could  not  destroy,  thev  said,  "otherwise  than 
''V  «r,r  .nnd  ylctor^•,••  that  which  was  the  engagement  of  two  After 
^■mr  fnrth.r  areument  thev  wrote  that  thev  w-uld  not  pn^h  further 
their  ..bservation-.,  as — 


Tliose  which  thev  have , 

of  France,  and  to  'her  the  honor  of  •".■'s-u-nfice  which  she  w.,,!,] 


rewatcl   -iilticc  to  est.abli,b  the  rights 
"     '     "  e  wi 

jioris  ot 


niake  in  renouncing  the  exclusive  right  of  entrv  into  the  pons  o, 
r/TiTci^)  P'-'vateers   ,„;co,npan,ed    with    tl.eir   prizes 


268 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


As  to  the  proposal  of  a  money  indemnity  for  delay  they  said: 

The  proposition  of  the  American  ministers  oflfers  to  the  Re- 
public at  a  distant  time  the  hope  of  exclusive  advantages,  and 
for  the  present,  and,  perhaps,  for  seven  years,  an  humiliating  for- 
feiture of  those  rights,  and  a  shameful  inferiority  with  regard  to  a 
state  [Great  Britain]  over  which  she  had  acquired  these  privi- 
leges by  the  services  she  had  rendered  to  America  when  it  made 
war  with  such  state.  When  the  ministers  of  France  can  subscriV 
to  a  condition  unworthy  the  French  nation,  the  price  which  they 
would  put  upon  their  humiliation  would  it  not  be  the  continu- 
ance of  a  subjection,  which  they  consider  to  be  contrary  to  the 
interest  of  the  United  States?  The  dependence  of  her  ally  can 
not  be  for  her  an  indemnity  for  a  national  suffering.  The  Frcndi 
ministers  believing  it  to  be  their  duty  to  insist  with  their  Gov- 
ernment upon  the  immediate  renunciation  of  a  privilege  well  ac- 
quired, it  would  be  contradictory  that  they  should  provide  for  it< 
return  at  a  distant  time.    (Ibid.  615,  616.) 

Some  two  weeks  later  the  French  again  insisted  that  the  treaties 
were  not  broken  by  the  state  of  "misunderstanding"  which  had  txistci! 
"through  the  acts  of  some  agents  rather  than  by  the  will  of  the  re- 
spective Governments,"  and  which  had  not  been  a  state  of  war,  ai 
least  on  the  side  of  France.  (Ibid.  616.)  Yet,  after  this  opening',  the 
ministers  use  language  in  apparent  antagonism  with  the  position  thib 
and  before  advanced  that  the  treaties  were  still  existent;  their  tone 
toward  the  United  States  is  marked  by  extreme  bitterness,  but  they 
finish  by  consentinpf  to  an  abolition  of  the  treaties  and  the  conchisioii 
of  a  new  one.     The  alternative  proposition  is  thus  put : 

Either  the  ancient  treaties,  witli  the  privileges  resultitii;  frnm 
priority  and  the  .stipulation  of  reciprocal  indemnities,  or  a  new 
treaty,  assuring  equality  without  indemnity.     (Ibid.  618.) 

To  the  first  of  these  propo'^als  our  ministers  were  forbidden  to  as- 
sent, as  it  involved  an  admission  of  the  continuing  force  of  the  trcatu  - : 
to  the  second  they  could  not  assent,  for  their  first  duty  was  to  ohtain 
indemnity.  The  time  lia<l  come  when  they  must  go  beyond  their  iii- 
struction'<  and  assume  personal  n-'iponsihility.  ( Doc.  102,  pp,  619. 
620.) 

In  .\upji;^t,  after  s<inie  delay  .md  apparent  friction,  the  .Aniericnns, 
sayinp  that  "while  nothing  would  l>e  more  grateful  to  .America  than 


GRAY  V.  UXITKD  STATI>" 


269 


to  acquit  herself  of  any  just  claims  of  France,  nothing  could  be  more 
vam  than  an  attempt  to  discourse  to  her  reasons  for  the  rejection  o 
her  own,    made  the  following  propositions  (ibid.  623-625)  • 

coi^L^d^;d^t.fsrl^^^^^^^^^^^^^ 

ing  between  the  two  powers  ha.l  intended   Except  so  fT'T^h'^' 
are  derogated  fron,  by  the  pre-.nt  treaty  ^     °  ^"  ^  '^^^ 

withii  sev:n'l''rs  "mlSo^Ti  """^'  "^"^>'  '"^  ^'y  »«  ^""^  °'her 
may  be  isL^for  inT^t      'a  TdU':  "r?  "'  T'T  ''''"''' 

r^  Of  ^.h  parties  shall^t^^,-;;^:^^   tKe^^T mS 


favored  nation 


The  third  proposition  looked  to  such  modification  of  the  mutual 

to  the  value  of  1,000.000  francs  to  the  other  when  attacked   but  either 

m,ght  wuhm  the  seven  years  pay  the  lump  sum  of  5.000  OoSf^an 

0  be  freed  from  the  oblifjation.     The  fifth  proposition  pZdc  1  in 

emn.nes  for  md.vduals.  and  that  -public  ships  ukc„  on  ci  it  .  1 

shou  dl  be  restored  or  paid  for."  and  the  sixth  that  all  property    e^l 

by  ether  party  and  not  yet  -definitively  condemned-'shourd'bert! 

stored  on  reasonable  proof  of  it  belonging  to  the  other.    So  they  fina  Iv 

agreed  to  recognize  the  existence  of  the  treaties,  the  right  ofpran^e 

0  the  guaranty  and  exclusive  port  privileges,  and  proposed  L  pay 

lump  sum  to  be  free  of  their  obligation  in  the  future  for  the  pronc^ 

tons  on  th.s  subject,  while  on  their  face  mutual,  were  in  effect  fo" 

L  tSr:;:';  ^-^^^  ^''•^'^  ^'°-  ^-- '--  p-^-g  .o  it^ 

I-ater  during  the  negotiations  an  offer  was  made  by  us  "to  cxtin- 
gu-jh  by  an  equivalent  of  8.000.000  francs  certain  claims  of  France 
•mder  the  former  treaties"  (ibid.  626,  629)  ;  but  even  after  all  hese 
oncessions  there  was  still  „o  satisfactory'  promise  of  resul  a 
t  K.  Sh  the  existence  of  the  treaties  had  in  effect  been  recogn  ^d  and 
^  -lemnity  on  either  side  in  substance  agreed  to."  The  Fre  ch  „ow 
made      counter  proposition  continuing  "the  ancient  treaties"  "as  :" 

uid  e  thr'"  '  'r'  "'^""'^'•"  P"^-'""^  commissioners  "to 
^qndate  the  respective  losses.-  amending  the  article  as  t„  the  u,e  of 
ports  by  pnvateers.  which  was  naturally  a  capital  subject  of  differ 


MlOraCOPr   RKOtUTMN   TKT  CHART 

lANSI  and  ISO  TEST  CHART  No   2) 


A 


/^PPUED  IfVHGE    In 

t6^?    E^^t    Mti.r.    -il-Mt 

,  "ft>  •a;  -  ti.WO     (•►.o«# 


270 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


ence,  and  providing  that  if  after  seven  years  the  seventeenth  a'ld 
twenty-second  articles  of  the  treaty  of  commerce  were  not  reestab- 
lished no  indemnities  should  be  paid,  and,  further,  that  the  guaranty 
be  converted  into  a  "grant  of  succor  for  two  millions"  redeemable  by 
a  capital  sum  of  ten  millions.     (I hid  627,  628.) 

The  Americans  made  a  counter  proposal,  renewing  their  offer  of 
8.000,000  francs  to  be  paid  within  seven  years  in  consideration  that 
the  United  States  "be  forever  exonerated  of  the  obligation,  on  their 
part,  to  furnish  succor  or  aid  under  the  mutual  guaranty,"  and  that 
the  rights  of  the  French  Republic  be  forever  limited  to  those  of  the 
most  favored  nation.  ( Ibid.  629. )  To  this  the  French  tersely  answered 
(ibid.  630): 

We  shall  have  the  right  to  take  our  prizes  into  your  ports:  a 
conmission  shall  regulate  the  indemnities  owed  by  either  nation 
to  the  citizens  of  the  other;  the  indemnities  which  shall  be  due 
by  France  to  the  citizens  of  the  United  States  shall  be  paid  for 
by  the  United  States ;  in  return  for  which  France  yields  the  ex- 
clusive privileges  resulting  from  the  seventeenth  and  twenty- 
second  articles  of  the  treaty  of  commerce  and  "from  the  right-  of 
the  guaranty  of  the  eleventh  article  of  the  treaty  of  alliance." 

Matters  now  again  reached  a  haltiiig  point;  neither  side  would 
yield:  France  acknowledged  her  real  object  to  be  to  avoid  payment 
of  indemnity,  while  the  United  States,  on  the  other  hand,  could  ti-t 
assent  to  her  views  as  to  the  guaranty  and  use  of  ports.  In  con- 
siderable lieat  the  ministers  parted.  (Ibid.  632,  633.)  The  next  d.iv 
the  Americans  made  another  effort,  because,  as  they  wrote  in  tlieir 
journal  (ibid.  634).  "being  now  convinced  that  the  dtxjr  was  perfectly 
clo.sed  against  all  hoi>e  of  obtaining  indemnities  with  any  modificntior.s 
of  the  treaty,  it  only  remained  to  he  determined  whether,  tr  >  a'l 
circumstances,  it  would  not  be  ex|>edicnt  to  attempt  a  temporary  ar- 
rangement which  would  extricate  the  United  States  from  the  war  'T 
th.it  peculiar  -tate  of  hostility  in  which  they  are  at  present  involved. 
save  the  immense  property  of  our  citizens,  now  pending  before  the 
council  of  prizes,  and  secure,  as  far  a-  possible,  our  commerce  air:iin-t 
the  .nbuses  of  capture  during  the  present  war;"  therefore  they  proji  -id 
til'id.  M.s)  that  as  to  the  treaties  and  indemnifies,  the  question  slmnld 
Ih-  left  ojH-n:  that  intercourse  -houlil  he  free:  then,  with  -uggestions  a- 
to   |)ro]H-rtv   captured   and   not   .lefmitively   condemned   .ind    property 


GRAV  V.  UNiTKD  STATES 


271 


which  might  thereafter  be  captured,  they  asked  an  early  interview 
The  French  still  insisted  that  a  stipulation  of  indemnities  involved 
an  admission  of  the  force  of  the  treaties  {ibid.  635-637)    and  after 
argument  proposed  that  the  discussion  of  the  indemnities,  together 
with  the  discussion  of  article  11  of  the  treaty  of  alliance  and  article^ 
1/  and  22  of  the  treaty  of  commerce,  be  postponed,  but  with  the  ad- 
mission that  the  two  treaties  are  "acknowledged  and  confirmed 
as  well  as  the  consular  convention  of  1788;"  that  national  ships' and 
privateers  be  treated  as  those  of  the  most  favored  nation ;  that  na- 
tional ships  be  restored  and  paid  for,  and  that  the  "property  of  indi- 
viduals not  yet  tried  shall  be  so  according  to  the  treaty  of  amitv  and 
commerce  of  1778.  in  consequence  of  which  a  role  d'cquipaqc  shall 
not  be  exacted,   nor  any   other   proof   which   this   treaty  could   not 
exact."     So,  after  months  of  negotiation,  the  French  ministers  come 
back  flat-footed  upon  the  treaties  as  still  existing,  something  which 
our  representatives   were   forbidden   by   their  instructions   to  admit 
Xevertheless  this  proposal  formed  the  text  for  discussion,  and  upon 
SI)  slight  a  foundation  was  built  the  treaty  of  1800. 

After  prolonged  negotiation,  and  after  striking  out  the  word  "pro- 
visional" in  the  name  or  description  of  the  new  treatv,  the  .Vmeric-in 
commissioners  signed  it.  although  with  great  reluctance,  "because  thev 
were  profoundly  convinced  that,  considering  the  relations  of  the  two 
cotnitries  politically,  the  nature  of  our  demands,  the  state  of  Fiance 
and  the  state  of  things  in  Europe,  it  was  [their]  dutv.  and  for  the 
honor  and  interest  of  the  Government  and  people  of  the  United  Staf-s. 
that  [they]  should  agree  to  the  treatv  rather  than  make  none"  {Ibid 
640.) 

The  vita!  effect  of  this  negotiation  as  explanatorv  of  the  treaty  of 
1800,  upon  which  the  rights  of  fhc>-e  claimants  arc'foun.Ied  explain, 
tlie  rehearsal  of  its  details  during  which  the  so-called  ultimatum  of  our 
Government  was  abandoned  and  the  contention  of  the  French  Gov- 
ernment as  to  the  existence  of  the  treaties  was  admitted. 

Starting  under  their  instructions  events  ha-l  forced  the  ministers 
to  -fter  iinlimiie.l  recognition  of  the  treaties  of  177^.  ,-oiiple<l  with  .i 
IHVii.iiary  equivalent  to  extinguish  in  the  future  their  most  onerous 
proMsinns  ( ibid.  M^^  ;  even  this  was  not  accepte.I.  and  the  French  rr- 
tiinnng  to  their  origin;,!  gronn<l.  said  that  no  indcmnMv  wuld  be 
trranted  unless  the  treaties  were  recognized  without  qualification  as  to 
the  future,  an.l  this,  they  said,  with  the  avowed  object  of  avoiding 


H 


272  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  payment  of  indemnitv.  (Ibid.)  The  American  ministers  had  then 
but  two  courses  open  to  them,  either  to  quit  France,  leavmg  the  United 
States  involved  in  a  dangerous  contest,  or  to  propose  a  temporary 
arrangement,  reserving  for  later  adjustment  points  which  could  not 
then  be  satisfactorily  settled.  (Ibid.  644.)  They  elected  the  latter 
course,  and  the  treaty  signed  at  Paris  the  30th  day  of  September.  1800, 
by  Ellsworth,  Davie,  and  Murray,  on  the  one  hand,  and  J.  Bonaparte, 
Fleurieu,  and  Roederer,  on  the  other,  became  part  of  the  supreme  law 
of  the  land,  and  was  so  proclaimed  by  the  President  the  21st  day  of 
December,  1801. 

But  between  its  signature  and  proclamation  a  very  important  his- 
tory intervened,  one  extremely  interesting  to  the  claimants  at  th;s 
bar,  and  which  has  been  the  cause  of  much  argument  and  contention. 

The  compromise  by  our  ministers,  to  which  they  were  forced  by  iW 
position  of  the  French  Government,  was  contained  in  the  second  arti- 
cle, which  read: 

The  ministers  plenipotentiary  of  the  two  parties  not  being  able 
to  agree  at  present  respecting  the  treaty  of  alliance  of  6tli  Kb- 
ruarv  1778.  the  treaty  of  amity  and  commerce  of  the  same  ilate 
and  the  convention  of  the  14th  of  November.  1788,  nor  upon  the 
indemnities  mutually  due  or  claimed,  the  parties  will  negotiate 
further  on  these  subjects  at  a  convenient  time,  and  until  tluy 
may  have  agreed  upon  these  points  the  said  treaties  and  c  inven- 
tions shall  have  no  operation,  and  the  relations  of  the  two  c-iin- 
tries  shall  be  regulated  as  follows. 

It  is  apparent  that  this  article  makes  the  treaty  temporary  and 
provisional  in  its  nature ;  it  admits  that  the  existence  or  non-e.xi.-tcncc 
of  the  treaties  of  1778,  with  the  liabilities  thereby  imposed,  is  open  to 
discussion,  and  that  the  indemnities  are  not  provided  for;  that  is,  that 
the  very  first  of  the  so-called  "ultimata"  of  Secretary  Pickering  is 
temporarily  abandone.l.  The  Senate  advised  and  consented  tc.  the 
ratification  of  the  treaty  provided  this  article  be  expunged,  and  in  it^ 
place  the  following  article  be  inserted: 

It  is  agreed  that  the  present  convention  shall  be  in  force  for 
the  term  of  eight  years  from  the  time  of  exchange  of  ratificationv 

Napoleon  thereupon  consented  (July  31,  1801).  "to  accept,  ratify. 
and  confirm"  the  convention,  with  an  addition  importing  that  it  shall 


GRAY  V.  UNITED  STATES 


273 


be  in  force  for  the  space  of  eight  years,  and  with  the  retrenchment 
of  the  second  article: 

Provided,  That  by  this  retrenchment  the  two  states  renounce 
the  respective  pretensions  which  are  the  object  of  the  said  article. 

The  ratifications  were  exchanged  in  Paris,  July  31,  1801.  The 
treaty,  with  its  addenda,  was  again  submitted  to  the  Senate,  and  in 
that  form  received  the  approval  of  that  body  (December  19,  1801), 
when  it  declared  that  it  considered  the  convention  "fully  ratified,'" 
and  returned  it  to  the  President  for  promulgation. 

What  the  respective  pretensions  were  which  were  the  subject  of 
the  second  article  does  not  admit  of  a  shadow  of  doubt:  on  the 
one  hand,  the  alleged  continuing  existence  of  the  treaties  incidentally 
involving  national  claims  for  past  acts  on  our  part  and  more  par- 
ticularly a  right  to  future  privileges;  on  the  other  hand,  indemnity 
to  our  citizens  for  spoliations. 

Oir  claims  were  good  by  the  law  of  nations,  and  we  had  no  need 
to  tu  -n  back  to  the  treaties  for  a  foundation  upon  which  to  r°st  our 
arguments.  Not  so  with  France.  Her  national  claims  must  neces- 
sarily rest  on  treaty  provisions,  and  the  future  pnvileges  she  desired 
above  all  else  could  in  no  way  be  so  easily  or  fully  secured  as  by  an 
admission  of  the  continuing  force  of  those  instruments.  She  there- 
fore insisted  that  for  indemnity  we  must  give  treaty  recognition.  This 
we  absolutely  refused  to  do,  and  upon  this  rock  twice  did  the  negotia- 
tions split,  only  to  be  renewed  by  the  patience  and  patriotism  of  our 
ministers.  After  months  of  weary  discussion  the  parties  stood  as  to 
this  point  exactly  where  they  started,  and  to  save  their  young  and 
struggling  country  from  further  contest  the  American  ministers  con- 
sented to  the  compromise.  Then  the  Senate  struck  the  compromise 
out,  and  France  said  in  eflfect,  "Yes,  we  agree,  if  it  is  understood 
that  wc  mutually  renounce  the  pretensions  which  arc  the  subject  of 
that  article,"  to  which  the  Senate  and  the  President,  by  their  oflficial 
action,  assented. 

So  died  the  treaties  of  1778,  with  all  the  obligations  which  they 
imposed,  and  with  them  passed  from  the  field  of  international  conten- 
tion the  claims  of  American  citizens  for  French  spoliation. 

In  this  whole  transaction  the  treaties  were  urged  on  the  one  side 
against  indemnities  on  the  other.     Admission  of  the  continuing  force 


274 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


I 


of  the  treaties  was  the  great  desire  of  France  to  which  she  subordinated 
all  else,  even  her  national  claims ;  on  the  other  hand,  the  United  States 
could  by  no  possibility  admit  such  a  contention,  for  to  do  so  would 
set  them  instantly  at  odds  with  their  former  enemy.  Having  given,  in 
1794,  to  Great  Britain  the  exclusive  port  privileges  secured  to  France 
in  1778,  they  could  not  in  1800  again  reverse  their  policy,  and,  by  re- 
turning these  privileges  to  France,  infringe  their  agreement  with 
Great  Britain. 

Yet  thi.s  was  the  issue,  an  issue  never  retreated  from  by  the  French ; 
as  they  put  it,  "either  the  ancient  treaties  with  indemnity  [for  spolia- 
tions] or  a  new  treaty  without  indemnity."  Article  2  of  the  treaty 
of  1800  still  presents  these  counter  propositions  linked  together  when 
it  postpones  the  discussion  of  the  treaties,  and  at  the  same  time  post- 
pones the  discussion  of  the  indemnities. 

When  the  United  States  struck  out  that  second  article  and  assented 
to  Napoleon's  proviso  that  by  so  doing  both  states  renounced  the  pre- 
tensions which  were  its  object  (that  is,  the  treaties  and  these  claims), 
the  contract  was  complete.  That  there  was  a  "bargain,"  to  use 
Madison's  word,  is  apparent  from  the  instrument  and  the  negotiations 
which  have  been  recited  as  preceding  it. 

Four  years  later  Mr.  Madison,  then  Secretary  of  State,  instructetl 
Mr.  Pinckney,  minister  in  Spain,  that  "the  claims  from  which  France 
was  released  were  admitted  by  France,  and  the  release  was  for  a 
valuable  consideration  in  a  correspondent  release  of  the  United  States 
from  certain  claims  on  them.  The  claims  we  make  on  Spain  were 
never  admitted  by  France  nor  made  on  France  by  the  United  States. 
Tlicy  made,  therefore,  no  part  of  the  bargain  with  her,  and  could  not 
be  included  in  the  release  " 

The  counsel  for  defendants  conten.ls  that  Mr.  Madison  referred 
in  this  letter  to  "national"  claims  on  the  part  of  the  United  States  for 
national  injury,  in  the  destruction  of  commerce,  the  increased  cost  of 
the  Army  and  Navy,  and  the  insult  to  the  flag.  It  should  be  noted, 
in  answer  to  this  position,  that  the  claims  against  Spain,  then  und-  r 
discussion,  were  exactly  these  claims  now  at  bar,  except  that  Spain 
was  the  party  defendant  instead  of  France.  As  against  France  cap- 
tures made  by  French  privateers  under  French  decrees  were  taker, 
into  French  ports,  and  there  condemned,  .^s  against  Spain  captures 
made  by  French  p.-iv;iteers  under  French  decrees  were  taken  into 
Spanish   i)orts   and   there  comlemned   by   French   consuls   under  the 


GRAY  V.  UNITED  STATES 


275 


authority  and  protection  of  Spain.  Spain  plead  that  these  claims  were 
settled  by  the  second  article  of  the  treaty  of  1800,  and  it  was  in 
answer  to  this  plea  that  Mr.  Madison  wrote  his  letter. 

The  subject-matter  of  the  instruction  to  Pinckney  was  these  claims 
and  nothing  else,  for  we  were  not  urging  "national'"  claims  on  Spain, 
but  the  claims  subsequently  described  in  the  Spanish  treaty  as  those 
"on  account  of  prizes  made  by  French  privateers  and  condemned  by 
French  consuls  within  the  territory  and  jurisdiction  of  Spain" 
(Treaty  of  1819,  Art.  9.)  These  claims  were  finally  recognized,  and 
paid  through  the  Florida  purchase,  (/rf.,  Art.  11 ;  see  also  treaty  of 
1802.)  ^ 

But  the  negotiations  of  the  Ellsworth  mission  are  conclusive  that 
the  claims  were  not  "national"  in  the  sense  of  governmental  as  op- 
posed to  individual.  It  is  unnecessary  to  repeat  extracts  from  the 
correspondence  already  given,  and  we  need  only  refer  to  the  project 
submitted  by  our  ministers,  the  18th  of  April.  'l800.  which  describes 
the  claims  as  those  "of  divers  merchants  and  other  citizens  of  the 
United  States"  (Doc.  102.  pp.  .=;8.=;-589).  thus  following  their  instruc- 
tions, which  called  them  "claims  of  our  citizens."     (fbid.  575.) 

Mr.  Pickering.  Secretary  of  State  under  the  first  two  Presidents, 
and  who.  above  all  others,  was  familiar  with  the  situation  and  with  the 
rights  of  the  parties,  said  that  we  bartered  "the  just  claims  of  our 
merchants"  to  obtain  a  relinquishment  of  the  French  demand  and 
that— 

It  woulvl  seem  that  the  merchants  have  an  equitable  claim  for 
UKlcmnity  from  the  United  States.  .  .  .  The  relinquishment 
n  our  (.ovemment  havmg  lieen  made  in  consideration  that  the 
iTendi  (.overnment  relin(|uish  its  demands  for  a  renewal  of  the 
old  treaties,  then  it  seems  clear  that,  as  our  (Government  applied 
the  merchants'  proiK-rty  to  buy  off  those  old  treaties,  the  sum-  so 
applied  should  he  reimbursed.     (Mr.  Clayioirs  >i)eech.  1,S46  ) 

Mr.  Madison,  as  we  have  ^cen,  said  to  Spain  that  the  claims  were 
admitted  by  Fmnce,  and  were  released  "for  a  valuable  consideration," 
and  lie  termed  the  transaction  a  "bargain." 

Mr.  Clay,  in  the  Meade  Case,  in  which  his  opinion  wa,-  given  in 
1821,  five  years  prior  to  his  report  upon  French  spoliations,  said  that 
^^hi!(■  a  country  might  not  be  hound  to  go  to  war  in  support  of  the 
nghis  of  its  citizens,  and  while  a  treaty  extinoti.>n  of  those  rights  is 
Iirohalily  binding,  it  appears — 


276  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

That  the  rule  of  equity  furnished  by  our  Constitution,  ^d 
which  provides  that  private  property  shall  not  be  taken  for  public 
u';e  without  just  compensation,  applies  and  entitles  the  injured 
citizen  to  consider  his  own  country  a  substitute  for  the  foreign 
power. 

In  this  conclusion  Chief  Justice  Marshall  strongly  concurred,  saying 
to  Mr.  Preston — 

Having  been  connected  with  the  events  of  the  period  and  con- 
versant with  the  circumstances  under  which  the  claims  arose,  he 
was,  from  his  own  knowledge,  satisfied  that  there  was  the 
strongest  obligation  on  the  Government  to  compensate  the  suf- 
ferers by  the  French  spoliations,     i  Hay  ton's  speech,  1846.) 

And  he  repeated  to  Mr.  Leigh  distinctly  and  positively  "that  the 
United  States  ought  to  make  payment  of  these  claims." 

This  view  of  the  distinguished  jurist  and  diplomatist  is  sustained 
by  forty-five  reports  favorable  to  the  claims,  made  in  the  Congress, 
against  which  stand  but  three  adverse  reports,  all  of  which  were 
made  prior  to  the  publication  of  the  correspondence  by  Mr.  Qay  m 
1826  Besides  Marshall,  Madison,  Pickering,  and  Clay,  the  validity 
of  the  claims  has  been  recognized  by  Clinton,  Edward  Livingston, 
Everett,  Webster,  Cushing,  Choate,  Sumner,  and  many  other  of  the 
most  distinguished  statesmen  known  to  American  history,  and  while 
opponents  have  not  been  wanting,  among  the  most  eminent  of  whom 
were  Forsyth,  Calhoun,  Polk,  Pierce,  Silas  Wright,  and  Benton,  still 
the  vast  weight  of  authority  in  the  political  division  of  the  Government 
has  been  strenuous  in   favor  of  the  contention  made  here  by  the 

claimants. 

The  judiciary  has  seldom  occasion  to  deal  with  the  abstract  right  of 
the  citizen  against  his  Government ;  for  in  a  case  raising  such  a  ques- 
tion the  individual  is  without  remedy  other  than  that  granted  him 
by  the  legislature.  The  question  of  right,  therefore,  is  usually  passed 
upon  by  the  political  branch  of  the  Government,  leaving  to  the  courts 
the  power  only  to  construe  the  amount  and  nature  of  the  remedy 
given.  Still  judicial  authority  is  not  wanting  in  support  of  the  posi- 
tion that  by  the  agreement  with  France  the  United  States  became 
liable  over  to  their  individual  citizens.  Lord  Truro  laid  down  in  the 
House  of  Lords  as  admitted  law — 


GRAY  V.  UNITED  STATES 


277 


That  if  the  subject  of  a  country  is  spoliated  by  a  foreign  Gov- 
ernment he  is  entitled  to  redress  through  the  means  of  his  own 
Government.  But  if  from  weakness,  timidity,  or  any  other  cause 
on  the  part  of  his  own  Government  no  redress  is  obtained  from 
the  foreign  one,  then  he  has  a  claim  against  his  own  country. 
(De  Bode  V.  The  Queen,  3  Clarke's  House  of  Lords.  464.) 

The  same  position  is  sustained  by  that  eminent  writer  upon  the 
public  law,  Vattel,  who  held  that  while  the  sovereign  may  dispose  of 
either  the  person  or  the  property  of  a  subject  by  treaty  with  a  foreign 
power,  still,  "as  it  is  for  the  public  advantage  that  he  thus  disposes 
of  them,  the  state  is  bound  to  indemnify  the  citizens  who  are  suf- 
ferers by  the  transaction."     (Book  4,  ch.  2.) 

Napoleon,  from  his  retirement  in  St.  Helena,  testified  that  by  the 
suppression  of  the  second  article  of  the  treaty  of  1800  the  privileges 
which  France  had  possessed  by  the  treaty  of  1778  were  ended,  and 
the  "just  claims  which  America  might  have  made  for  injuries  done 
in  time  of  peace"  were  annulled,  adding  that  this  was  exactly  what  he 
had  proposed  to  himself  in  fixing  these  two  points  "as  equi-ponder- 
ating  each  other."     (Gourgaud.  Memoirs,  vol.  2,  p.  129.) 

Finally,  Senator  Livingston,  familiar  with  the  whole  subject  as  a 
contemporary,  in  his  report  upon  it  to  the  Senate,  said: 

The  committee  think  it  sufficiently  shown  that  the  claim  for 
indemnities  was  surrendered  as  an  equivalent  for  the  discharge 
of  the  United  States  from  its  heavy  national  obligations,  and 
for  the  damages  that  were  due  for  their  preceding  non-perform- 
ance of  them.  If  so,  can  there  be  a  doubt,  independent  of  the 
constitutional  provision,  that  the  sulTerers  are  entitled  to  in- 
demnity? Under  that  provision  is  not  this  right  converted  into 
one  that  we  are  under  the  most  solemn  obligations  to  satisfy? 
To  lessen  the  public  expenditure  is  a  great  legislative  duty;  to 
lessen  it  at  the  expense  of  justice,  public  faith,  and  constitutonal 
right  would  be  a  crime.  Conceiving  that  all  these  require  that 
relief  should  be  granted  to  the  petitioners,  they  beg  leave  to  bri.ig 
in  a  bill  for  that  purpose. 

The  word  "national"  has  been  largely  used  in  argimient  in  allusion 
to  the  different  kinds  of  claims  at  different  periods  brought  into  the 
discussion,  and  is  a  convenient  word  if  clearly  understood  in  the  con- 
nection in  which  it  is  used.  All  claims  are  "national"  in  the  sense  of 
the  jus  gentium,  for  no  nation  deals  as  to  questions  of  tort  with  an 


1^  II 


i^  '^m 


278  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

alien  individual ;  the  rights  of  that  individual  are  against  his  Govern- 
ment, and  not  until  that   Government   has   undertaken   to  urge   his 
claim— not  until  that  Government  has  approved  it  as  at  least  prima 
facie  valid— does  it  become  a  matter  of  international  contention ;  then, 
by  adoption,  it  i;-  the  claim  of  the  nation,  and  as  such  only  is  it  re- 
garded by  the  other  country.     The  name  of  the  individual  claimant 
may  be  used  as  a  convenient  designation  of  the  particular  discussion. 
but  as  between  the  nations  it  is  never  his  individual  claim,  but  the  claim 
of  his  Government  founded  upon  injury  to  its  citizen.     Nations  nego- 
tiate and  settle  with  nations;  individuals  have  relations  only  with  their 
own  Governments.    Other  claims,  sometimes  the  subject  of  argument, 
rest  upon  injury  to  the  state  as  a  whole;  of  these  an  apt  illustration 
is  found  in  the  so-called  "indirect"  claims  against  Great  Britain,  di>- 
posed  of  in  the  arbitration  of  1872,  and  in  the  claims  advanced^  by 
France  for  injury  caused  by  non-compliance  with  the  treaties  of  1778 
Thus,  while  all  claims  urged  by  one  nation  upon  another  are,  tech- 
nically speaking,  "national."  it  is  convenient  to  use  colloquially  the 
words  "national"  and  "individual"  as  distinguishing  claims  founded 
uix)n  injury  to  the  whole  people  from  those  founded  upon  injury  to 
particular  citizens.    Using  the  words  in  this  sense,  it  appears  that  in 
the  negotiations  prior  to  the  treaty  of  1800,  and  in  effect  in  the  instru- 
ment itself,  national  claims  were  advanced  by  France  against  indi- 
vidual claims  advanced  by  the  United  States.     France  urged  that  she 
had  been  wronged  as  a  nation ;  we  urged  that  our  citizens'  rights  had 
been  invaded.     If  "national"  claims  had  been  used  against  "national" 
claims,  and  the  one  class  had  been  set  off  against  the  other  in  the 
compromise,  of  course  the  agreement  would  have  been  final  in  every 
way.  as  the  surrender  and  the  consideration  therefor  would  have  been 
national,  and  no  rights  between  the  individual  and  his  own  Govern- 
ment could  have  complicated  the  situation.     But  in  the  negotiation 
of  1800  we  used  "individual"'  claims  against  "national"  claims,  and 
the  set-off  was  of  French  national  claims  against  American  individual 
claims.     That  any  Government  has  the  right  to  do  this,  as  it  has  the 
right  to  refuse  war  in  protection  of  a  wronged  citizen,  or  to  take  other 
action,  which,  at  the  expense  of  the  individual,  is  most  beneficial  to  the 
whole  people,  is  too  clear  for  <liscussion.     Nevertheless,  the  citizen 
whose  property  is  thu-  sacrificed  for  the  safety  and  welfare  of  h^ 
country  has  his  claim  ag.iinst  tha.  country;  he  has  a  right  to  com- 
pensation, which  exist-  even  if  no  remedy  in  the  courts  or  el'^ewhere 


GRAY  V.  UNITED  STATES 


279 


be  given  him.  A  right  often  exists  where  there  is  no  remedy,  and  a 
most  frequent  illustration  of  this  is  found  in  the  relation  of  the  sub- 
ject to  his  sovereign,  the  citizen  to  his  Government. 

It  seems  to  us  that  this  "bargain"  (again  using  Madison's  word), 
by  which  the  present  peace  and  quiet  of  the  United  States,  as  well  as 
their  future  prosperity  and  greatness  were  largely  secured,  and  which 
was  brought  about  by  the  sacrifice  of  the  interests  of  individual  citi- 
zens, falls  within  the  intent  and  meaning  of  the  Constitution,  which 
prohibits  the  taking  of  private  property  for  public  use  without  just 
compensation.  We  do  not  say  that  for  all  purposes  these  claims  were 
"property"  in  the  ordinarily  accepted  and  in  the  legal  sense  of  the 
word;  but  they  were  rights  which  had  value,  a  value  inchoate,  to  be 
sure,  and  entirely  dependent  upon  adoption  and  enforcement  by  the 
Government ;  but  an  actual  money  value  capable  of  ascertainment  the 
moment  the  Go  ernment  had  adopted  them  and  promised  to  enforce 
them,  as  it  did  in  August,  1793,  and  constantly  thereafter.  That  the 
use  to  which  the  claims  were  put  was  a  public  use  can  not  admit  of  a 
doubt,  for  it  solved  the  problem  of  strained  relations  with  France 
and  forever  put  out  of  existence  the  treaties  of  1778.  which  formed  an 
insuperable  obstacle  to  our  advance  in  paths  of  peace  to  the  achieve- 
ment of  commercial  greatness. 

The  defendants  urge  further  that  the  treaty  of  1803  finally  disposed 
of  all  pretensions  of  citizens  of  the  United  States  in  regard  to  these 
>poliations. 

One  of  the  principal  objects  of  this  treaty  is  found  in  the  instruc- 
tions to  Mr.  Livingston,  our  minister,  wherein  the  Secretary-  of  State 
directed  his  particular  attention  to  claims  embraced  in  the  fourth  arti- 
c'e  of  the  treaty  of  1800.  describing  them  as  arising  from:  "d)  Cases 
of  capture  wherein  no  judicial  proceedings  have  been  had:  (2)  cases 
carried  before  French  tribunals,  and  not  definitively  decided  on  the 
.^Oth  September.  1800:  (3)  captures  made  subsequent  to  that  date." 
I  Madison  to  Livingston.  .Sept.  28.  1801.  Doc.  102.  p.  701.) 

.\ccordingly  Mr,  Livingston  in  January  following  complained  to  the 
FrcLch  G'nemment  of  infractions  of  the  (-xistine  treaty  (of  1800)  in 
relation  to  "vessels  taken  after  it-  sJafnature."  "vcs-els  previously  taken 
V  here  no  judicial  proceedings  had  bcpn  had,"  "vessels  on  which  no 
■iefinitive  sentence  had  been  given  before  thnt  day,"  or  which  were 
removable  to  the  council  of  prices:  these  are  fourth-article  claims- 
embrace.!  in  the  modus  z-ivendi  therein  pro\id«d.      Claims  for  vessels 


280 


JUDGMENTS  OF  THK  COi      T  OF  CLAIMS 


which  were  to  have  been  restored  are  clearly  not  claims  which  had 
matured  prior  to  September  30,  1800.  when  the  treaty  was  signed. 

(Ibid.  704.) 

In  the  next  month  (February  24,  1802)  Mr.  Livingston  speaks  of 
the  differences  as  "debts,"  about  which  he  must  transmit  to  his  Gov 
emment  a  statement  of  the  measures  about  to  be  adopted  by  France, 
"with  a  view  either  to  afford  it  the  satisfaction  that  it  will  always 
feel  in  contributing  to  the  interests  of  France  .  .  .  or  of  put- 
ting a  stop  to  credits  that  must  be  ruinous  to  Us  citizens  already  suf- 
fering under  heavy  losses  sustained  by  the  detention  of  a  considerable 
capital  in  the  hands  of  the  French  Government."  (Ibid.  708.)  It  is 
thus  apparent  that  these  claims,  in  the  view  of  the  negotiator,  rested 
substantially  on  contract,  and  it  is  further  apparent  from  the  text  of 
the  note  that  these  contracts  were  for  supplies  to  the  French  fleets  and 
armies. 

This  IS  the  first  subject  of  negotiation ;  the  second  is  as  to  the  coun- 
cil of  prizes,  about  which  there  were  "daily  complaints  of  their  entire 
disregard  of  the  treaty,"  so  much  so  that  when  a  vessel  was  ordered 
restored  it  was  sent  back  in  a  damaged  state  and  charged  with  cost  of 
"detention,  storage,  etc."  Fourth-article  claims  these,  as  we  have  al- 
ready seen. 

Livingston  later  (April  17,  1802),  in  discussing  the  fifth  and  secord 
articles  of  the  treaty  of  18(X),  says: 


The  fifth  article  expressly  stipulates  that  all  debts  due  by  either 
Government  to  the  individuals  of  the  other  shall  be  paid,  but  as 
this  would  also  have  included  the  indemnities  for  captures  and 
condemnations  previously  made,  and  it  was  the  intention  of  t!ie 
contracting  parties,  by  the  second  article,  to  preclude  this  pay- 
ment as  depending  on  a  future  negotiation,  it  was  necessary  t  ■ 
except  from  this  promise  of  payment  all  that  made  the  subject  cf 
the  second  article.  ...  On  its  [the  second  article]  being 
erased,  the  fifth  article  stands  alone  as  a  promise  to  pay.  with  tie 
single  exception  of  indemnities  for  captures  and  condemnationv 
(Ibid.  7\7.) 

And  he  adds  that  so  far  as  relates  to  indemnities  for  capture?  and 
condemnation's  which  had  been  ...ade  previous  to  the  signature  of  the 
treaty  his  demands  could  not  be  supported. 

It  seems  hardly  necessary  to  quote  further  from  the  correspondence. 
which  shows  that  Mr.   Livingston  not  only  never  had  in  mind.  b'Jt 


GRAV  V.  UMTKD  .iTATKS 


281 


cxpreisiy  excluded.  .■,e<:r;nd-artic!e  claiir  directinj?  his  attention  first 
to  debts,  •'confirmerl  by  treaty,"  as  he  sa>s  (ibid.  729),  and  second,  to 
vessels  seized  during  or  after  the  negotiation  of  the  treaty  of  180(J; 
that  is,  claims  ••confirmed,"  t..  use  his  word,  by  that  treaty's  fourth 
and  fifth  articles. 

The  distinction  between  dirrcrent  cla-es  of  claims  then  existing 
between  the  United  States  and  France  mun  be  clearly  marked  out 
before  the  treaty  of  ISO.'  can  be  properly  understood.  The  second 
article  of  the  treaty  of  I.-T.O  covered  claims  for  illegal  seizures  and 
condemnations  which  were  tied  to  the  treaties  of  1778.  But  all  the 
illegal  captures  were  not  covered  by  rhat  second  article,  for  the  fourth 
article  treated  of  others;  that  i-.  of  "property  captured,  and  not  yet 
definitively  condemned,  or  which  may  be  captured  before  the  exchange 
of  ratifications:"  and  this  property,  it  was  agreed,  should  be  restored. 
T'-at  is,  while  the  negotiations  of  the  El!sv/orth  mission  were  pro- 
ceeding the  French  decrees  remained  in  force  and  sooliations  had  not 
■topped-  the  cases  of  some  ^e:z'.d  .Americar.  vessels  were  then  pend- 
ing before  the  French  t-buna's.  and  these  were  the  ones  to  be  restored 
•f  not  ••definitively  condemried"  by  the  time  the  treaty  became  a  law; 
others  might  be  seized  pending  the  discussion  and  before  exchange 
-f  ratifications:  in  fact  such  sei,rures  were  made,  and  the-e  also  were 
::  be  restored. 

Additional  proof  that  this  fourth  article  was  in  effect  a  mere  modus 
-.Mend:  is  found  in  its  concluding  paragraph,  which  provides  that  it 
sh,-i::  take  effect  from  the  ^'.ate  of  signature,  not  from  the  exchange  i.i 
nrncatior.s.  and  that  if  any  property  should  be  condemned— that  is 
-■ondemned  in  the  future— be:  :re  knowledge  of  the  stipulation  ••shall 
be  obtained,  the  propertv-  ^hall  without  delay  be  restored  or  paid  for  " 
N'ow.  the  property  covered  by  this  article,  to  wit.  that  then  before  the 
•"bunals  or  which  m.ight  there.ifter  cr.me  before  the  tribunals  before 
"-.e  new  treatv-  took  effect,  never  was  restored  or  paid  for,  although 
v<  o.afons  coritinued  for  some  time. 

1:  is  important  here  to  note  the  distinction  between  the  position 
"=  unmst  the  French  Gnemment  of  ca-es  pending  during  the  nego- 
"iticn  or  which  might  thereafter  arise  an  '.  th,it  -f  cases  now  before 
t.ii-  court  wherein  the  condemnation  had  ■■-rciirred  before.  This  claim 
ind  those  like  it  were  "claims  to  indemnir.-  merely:  the  property  had 
:-^arp^ared  and  could  not  be  restored,  the  French  tribunals  had  defini- 
■■•■tW  acted,  and  pav-ment  for  it  would,  be  m.ide  only  upon  admission 


282 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


by  the  United  States  of  the  continuing  force  of  the  ancient  treaties ; 
while,  as  to  then  pending  cases  the  property  could  be  restored,  or  in 
case  of  mistaken  sale  its  value  could  be  easily  and  immediately  ascer- 
tained, and  the  fourth  article  absolutely  promised  restoration  or  pay- 
ment. 

The  agreeme  t  of  1803  is  contained  in  three  instruments  forming 
the  contract  by  which  we  acquired  Louisiana;  these  treaties  give  no 
rights  to  these  claimants,  as  is  popularly  supposed;  on  the  contrary, 
it  is  contended  by  the  Government  that  any  rights  which  ever  existed 
were  destroyed  by  them.  The  third  treaty,  providing  for  the  payment 
of  "sums  due  by  France  to  the  citizens  of  the  United  States,"  is  the 
only  one  bearing  upon  these  cases. 

A\  .icle  1  provides  that  these  "sums,"  called  "debts,"  contracted  be- 
fore September  30,  1800  (the  date  of  the  prior  treaty),  shal  be  paid, 
with  interest. 

.Article  2  describes  the  debts  as  those  set  forth  in  an  annexed  con- 
jectural note,  whic'  is  a  list  of  claims  allowed  by  the  French  account- 
mg  officers  for  such  articles  as  rice,  flour,  salt  beef,  cloth,  1. -ther.  cot- 
ton and  indigo,  wines  and  spirits ;  while  article  6  limits  the  preceding 
articles  to  debts  still  due  .American  citizens  yet  creditors  of  France 
"for  supplies,  for  embargoes,  and  prizes  made  at  sea  in  which  the 
appeal  has  been  properly  lodged  within  the  time  mention etl  in  the 
convention"  of  1800.  But  there  is  no  such  time  mentioned  in  that  con- 
vention, nor  is  there  a  word  in  it  looking  to  any  appeal  whatever  from 
decisions  of  inferior  tribunals:  the  only  provision  about  prizes  in  that 
trcatv  is  that  rontaint-d  in  its  fourth  article,  directing  that  in  the  future 
they  bo  restored. 

Proceeding  now  to  article  5  of  this  somewhat  mysterious  instrument 
of  1803,  we  find  another  liniit.itinn  ui>on  the  preceding  articles,  tn 
wit,  that  thev  shall  cover  oidy  captures  wherein  the  council  of  priz.-; 
has  ordered  restitution  if  the  claim  was  v.ilid  against  France,  and  then 
only  in  case  of  "insufficiency  of  the  captors."  i.  c.  that  the  privatccr'- 
bond  was  not  good.  Further,  it  sh.ill  n|>i>iy  to  debts  mcntioried  in  th>' 
fifth  article  of  the  treaty  of  1800.  that  is,  "debts"  (not  claims  for 
damage  by  tort)  due  by  one  nation  to  citizens  of  the  other,  and  tins 
fifth  article  of  1800  ext^ressly  bars  claims  for  captures  or  confix- 1- 
tion=.  while  the  fifth  article  of  1«03  oxpre«Iy  docs  not  cmipn-hend 
"prize-  whose  condemnation  h.i-  been  'T  •^hall  1>0  confirmed."  T  hcrr- 
fnre.  bv  thi-  serie-  of  limitations,  the  scoi>e  of  the  treaty  of  1803  i'^ 


GRAV  V.  UNITED  STATES 


283 


confined  on  its  face,  and  so  far  as  the  cases  at  bar  are  interested 
in  it,  to  captures,  of  which  the  council  of  prizes  shall  have  ordered 
restitution,"  provided  the  claim  was  a  valid  one  and  the  captor  insuffi- 
cient. Really,  there  does  not  seem  very  much  left  of  it,  so  far  as 
"embargoes  and  prizes  made  at  sea"  (Art.  4)  are  concerned. 

The  significant  fact  is  state.l  to  us  by  counsel  in  this  connection  that 
there  were  presented  to  the  commission  formed  under  the  treaty  of 
18.31,  which  we  shall  soon  have  occasion  to  examine,  claims  for  two 
vessels,  the  Caroline  and  the  Orlando,  which  ere  rejected  upon  the 
t.xpress  ground  that  the  captures  were  made  prior  to  September  30, 
l.SOO.  Further,  the  report  of  the  board  under  the  treaty  of  1803  shows 
that  only  eight  captures  at  sea  were  allowed,  a  ridiculously  small  num- 
ber if  the  class  of  claims  now  at  bar  were  within  the  jurisdiction  of 
that  tribunal. 

That  the  settlement  and  payment  of  "debts  "  not  of  claims  for  tort, 
was  the  primary  object  of  the  treaty  of  1803  is  explained  in  its  pre- 
amble and  is  apparent  from  its  text,  while  the  treaty  of  1800  dealt  with 
torts  and  indemnities  for  wrongs  committed  upon  our  commerce.  The 
claim  for  debts  was  not  sacrificed  by  the  treaty  of  1800,  but  kept  alive 
by  the  fifth  article,  which,  in  further  proof  of  the  abandonment  of 
claims  for  tort,  explicitly  excepted  from  the  benefits  of  its  provisions 
nil  "indemnities  claimed  on  account  of  captures  and  confiscations." 
Rut  these  "debts  contracted  by  one  of  the  two  nations  with  individuals 
of  the  other"  were  not  paid  as  the  treaty  of  1800  promi-;ed.  nor,  as 
Mr.  Livingston  said  to  the  French  (lovcriiincnt  in  1802,  was  there  the 
nicst  "distant  hope  of  their  payment."     (Doc.  102.  p.  714.) 

The  assfxriation  of  the  second  and  fifth  articles  of  the  treaty  of  180T 
in  the  preamble  of  the  treaty  of  1803  has  l)een  deemed  significant  as 
showing  an  intention  to  revive  and  settle  the  second-article  claims  now 
commonly  known  as  "spoliation"  claims,  whereas  the  allusion  was  in- 
tendc<l  to  rea'^irm  the  exclusion  of  these  claims  already  made  by  the 
second  article:  for  the  fifth  article  (ISOO)  inrln.les  "de'bt>"  which  are 
tn  l)e  settled  and  expres-Iy  excludes  "indeintiities":  that  is.  exclude^ 
the  subjeit-matter  of  the  second  article,  wliicli  was  not  to  be  settled: 
:•)  that  France,  being  desirous  in  \8■0^.  a-  Mie  preamble  says,  "in  com- 
pliance with  the  -second  and  fifth  article^  of  the  convention  of  1800  to 
secure  the  payment  of  the  sums  due  by  France  tn  the  citizens  of  the 
I'mtcd  .<=;tates."  covenanted  to  pav  "debts."  not  indemnity  for  torts 
other  than  those  specific.!,  and  which  had  In-en  turned  into  debts  hv 


i\ 


284  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  fourth  article  of  the  treaty  of  1800.  To  put  it  in  another  fomi: 
as  the  original  second  article  had  ceased  to  exist,  and  was  replaced 
by  a  provision  that  the  treaty  should  last  eight  years,  of  course  a  refer- 
ence to  this  new  second  article  in  the  treaty  of  1803  would  have  been 
absurd ;  so  we  must  conclude  that  the  negotiators  referred  to  the  orig- 
inal second  article,  the  article  which  had  been  expunged  by  agreement. 
That  article,  so  far  as  claims  of  citizens  were  concerned,  referred  to 
torts  and  nothing  else:  the  fifth  article  referred  to  "debts,"  and  pro- 
vided that  payment  should  be  made  therefor:  and  then  went  on  to 
make  an  express  exclusion  from  its  benefits  of  claims  for  captures  and 
confiscations,  that  is.  claims  arising  from  torts  which  were  covered  by 
the  second  article  as  it  then  stood.  What  more  natural,  then,  that,  in 
rehearsing  the  objects  of  the  treaty  of  1803,  the  two  articles  should  be 
brought  together  in  the  preamble,  the  fifth  article  as  embracing  the 
debts  due  and  the  second  article  as  covering  the  express  exception 
made  in  the  fifth  article,  which  "includes  debts  contracted,"  and  ex- 
cludes "indemnities  claimed  on  account  of  captures  and  confiscations""' 
The  language  of  the  preamble  is,  therefore,  in  compliance  with  the 
second  as  well  as  with  the  fifth  article  of  the  treaty  of  1800. 

We  are  of  opinion  that  the  treaty  of  1803  had  no  reference  to  the 
claims  embraced  in  the  second  article  of  the  treaty  of  1800. 

Turning  to  the  particular  case  now  on  trial  we  consider  it  with  the 
principle  admitted  that  the  claims  popularly  known  as  "French  spoli-i- 
tion  claims"  were,  as  a  class,  and  if  embraced  in  the  description  of 
the  second  article  of  the  treaty  of  1800.  valid  claims  against  France 
which  were  surrendered  by  our  Government  for  the  valuable  c  n- 
sideration  found  in  a  release  from  the  obligations  of  the  treaties  of 
1778.  and  that,  by  this  action,  the  Government  of  the  United  .'^tatr- 
a>sume(l  the  li.ibilities  of  France  in  regard  to  them,  and  is  in  ■'-.^ 
bound  to  recompense  the  individuals  who  suffered  loss  by  the  iIK-. 
captures  and  condemnations. 

The  fin<lings  show  that  the  schooner  Sally,  owned  by  .\meri->;> 
cotnmandcii  by  an  American,  and  laden  with  an  .American  cargo.  «' 
on  a  commercial  voynge  from  Nfa-sachusctts  to  Spain,  was,  on  the  =' 
day  of  lune.  1797.  seized  by  the  French  privateer  Intrfpide.  taken  t 
the  port  of  Nantes,  there  condemned  by  a  French  tribunal,  ani  ' ^-'' 
fiscated"  for  the  benefit  of  the  privateer.  It  was  not  alleRe<l  that  he 
had  violated  the  law  of  nations,  either  by  attempting  a  blockade  'v  '• 
carr>ing  contraband,  or  in  any  other  manner,  but  that  she  had  violr/.el 


GRAY  V.  UNITED  STATFIS 


285 


a  local  French  municipal  regulation  "c'-jncerning  the  navigation  of 
neutrals."  it  appear-  upon  the  face  of  the  decree  that  the  Govern- 
ment of  France,  through  law,  pa-.erl  by  its  own  legislature,  valid 
within  its  territorial  juri^flict:r.n  and  u[-/jn  its  own  ships,  hut  not  else- 
where, attempted  to  regulate  the  conduct  of  neut-nl  merchantmen  upon 
the  high  =eas,  where  they  were  -ubject  only  to  the  law,  of  their  own 
country  and  that  law  of  abstract  r;?ht  and  justice  which  by  mutual 
consent  has  become  cry»tal!i7ed  ir.to  the  law  of  nations. 

To  learn  wherein  the  schooner  violated  the  French  decree  we  must 
t-.:m  to  the  findings,  which  rfhear-c  the  judgn-ent  of  the  tnbunai,  as 
follows : 

"That  while  the  T.aner  may  be  correct  n  the  sum  total  of  his 
::e.irar.ce  papers  he  is  rtagrantlv  at  fault  a-  to  his  crew-list,"  and  -'con- 
=  --ier:ng  that  the  :fc!igat;on  comrr.or  to  fh^  French  nation  and  to  the 
'-■-.itei  States,  and  which  cr.stitu'es  the  -afcty  of  their  respective 
r:-.i?ition.  is  defined  by  the  treaty  of  February  6.  177.S,  which  de- 
::'.f<.  ^n-.de<  25  and  27.  that  e-.ery  captain  who  receives  a  passport 
~-j^t  be  provided  with  a  !;^t.  ^^^r.-d  and  attened  by  witnesses  con- 
M-nirg  the  names  and  surname^  ani  place  of  birth  and  residence  of 
the  oer-ons  compr.sing  the  ---w  -,f  hi-  ship  and  of  all  persons  embark- 
-g  -jpcn  her.  wh:ch  he  w:!:  not  re-e:-.  e  without  the  knowledge  and  per- 
-:--;-n  o:  the  naval  -.nicers,  C.-n-ideri".g  th.at  the  memorandum  or 
:-r*-;:^t  fulnlls  none  of  rhe-^e  frmahties.  ir.a-rr.uch  as  it  is  tm-ign'-d. 
•-.-.-  the  places  of  hirh  and  residence  of  the  men  com.posing  the  crew 
i--"  n:t  declared,  and  "he  perri^-ion  of  -re  naval  -.freer  is  not  given: 

of 
and 

■a-'--;.'.<^ring  finally  that  art:-le  -I  -,f  the  ie-ree  ■  f  the  E.-cecu*:ve  Di- 
--•--v  -•  th^  lit'-  '.'^t-^e,  v-ar  •=•--.  :;  ->a-  \r.'  z>t'^:-p..  and  that 
:  ieclares  to  he  a  gO'-d  .and  la.tf-il  -trze  ev--.  .Vrrerv-a-  shir,  whi.-h 
■•ill  -Of  '-ave  a  crew-'i 
\T.T.'^y-i*  I  t "  ti"(*  tr»^atv 
"■''"■r-nitv  v\-th  the>^e 


;  ler.ng  that  articl-  6  of  secttrn   "  ■  f  the  marine   regulati-n; 
ieclare;  t->  '-.e  lawful  trr.'e  •he  'irz'^^  of 


•'"ited 


.a  A  fi;  •:-•!(  f/---'. 
■X  :r.  iue  fmi  such  t=  -  "le-cribed  by  the  model 
•f  Feh-jar.-  6.  IT"-  "  •her^'ftre.  the  court,  in 
lav-,  ird  e-p-'-ril'.   •<  •'-  -ir*:.->  -I  of  tre  said 


^e  capture   -r 
be'  "ng  T-   the 


'■■'••.    I'clared   valid 
■    i-f'  -Jo  C3pt.i:n  tt- 
i;--*  '-e  i:d  --t  hav--  a  -ew-I:-t  in  • 
-»t  •  "s-^I  and   c.trg'".   were   --r.-. 
' '  ■:   f  ■•  .•w^T  V  "  \va*  rot  :r   t-rm. 


•he  Fr- 


itre— vi-ii  I, 


'^  ":/.'',  a."!  h'-r  carg'...  and 
'^-■.f-  -,i  ''r.f  Republic"  he- 
~.  ••  ■>  "h  t-»  French  >cree, 
'.    '--e-.-.'i-:-e    -he     -rew-iist.    "he 

-■-.i'-  ■''•'  ■-.  -. -,f  a  word  or 
r-i     >  .-    ':'2.  D  6,^7  (.  in  »h' 


if 

m 


286  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

treaties  of  1778  requiring  any  such  document.  The  French  decree  re- 
quired it  but  we  can  not  admit  that  the  government  of  a  foreiRn 
country  may  stretch  its  arm  over  the  ocean,  and.  seizing  an  Americm 
vessel,  direct  it  as  to  the  pai>ers  it  shall  carry,  r  '.-r  penalty  of  confis- 
cation There  is  no  allegation  in  the  proceeding  ti.u  the  Sally  did  not 
have  all  the  papers,  other  than  this  crew-list,  required  by  the  treaty 
of  1778  and  the  laws  of  the  United  States.  In  fact,  the  court  itselt 
admits  this  in  saving  that  the  captain  is  correct  "in  the  sum  total  of 
his  clearance  papers.  ...  but  flagrantly  in  fault  as  to  h.s  crew- 
li.t  ••  How  flagrantlv  at  fault  ?  He  had  complied  with  the  laws  of  his 
country,  he  had  not  violated  a  provision  of  the  treaties  of  1778.  ar! 
it  is  not  hinte<l  that  he  infringed  the  law  of  nations  or  intended  to 

%h*e  confiscation  rests  upon  the  decree  of  March  2,  1797.  authorizing 

the  seizure  and  condemnation  of  every  .\merican  vessel  not  havin?  on 

board  "a  rolr  d'dquifagc,  in  proper  form,  such  as  is  prescribed  by  tie 

model  annexed  to  the  treaty  of  the  6th  of  Februar>-.  1778."    .\  •  'o  : 

d'fquiraoc"  i^  for  all  practical  purposes  a  "crew-list."  although  tcob.- 

nicallv  under  French  reinilations.  it  comains  the  names  of  all  on  bo.ir.. 

including  the  pa-engers.     Still  '-crew-lisf  is  a  sufficient  translation 

for  the  purposes  of  this  case.  ^ 

The  treatv  of  1778  required  vessels  of  each  party  to  be  funnel.  . 

with  a  pas-p.^rt  and  a  certificate  as  to  her  cargo  and  destination,  'y  • 

no  mention  whatever  i<  made  of  a  crew-list.     Seizures  on  accunt  ^  : 

the  lack  of  this  instrument  were,  however,  made  even  before  the  -U- 

cree  irf  Maxell,  17«7.  and  our  consul-gcnoral.  in  callinii  attention  t- r-- 

fact.  <ai,l  to  the  minister  of  foreign  affairs  (Feb.  23.  1797,  ihU.  ]"• 

l?v  no  regulations  of  the  United  States  are  our  ships  suhiecui 
to  tliis  formalitv :  and  not  one  of  our  vessels  has  (role  d  cqui^,  c 
■  -list  thu*  ci'iinicr-igned.  Moreover,  m  the  dUTercni  trv./.  .- 
.nventi.ms  that  connect  France  witli   .\menca  there  >  :    •. 
found  a  single  article  sutl^cicnt  to  justify  the  .loctrine  ^ct  i  'i 
l,v  the  privatier.     ...     I   consider  it  unnecess.ary   for  me  . 
communicate  on  thi-  Mibject  the  right  and  supreme  law  of  n..!'  •■ 
being  persu.ided  that  vou  will  think  with  me  that  every  tf     ..   - 
independent  nation   -houM   ;»>^se^^  the  exclusive  right  to  r-t ..  •• 
li^h  reciilaticns  for  tiie  man.ageMtm  ..f  their  own  navitpti  n    s- 
th.it  no  nation  pos<esse~  tl'c  right  l<  subject  the  citizen'  (  i  a-i^t  t. 
power  to  fomialitie-  to  be  observed  in  a  foreign  conntrv  n  .  •.-■- 
.icteil  bv  the  law-  of  .aid  cnuntrv  or  by  those  to  which  sai.,  .      e  ■• 


GRAY  V    U.VITKD  STATES 


28; 


Tl 


le  pnnc;rj:f  ui 


belorgr.     . 

teerj    desire-  •:,■  see  e-ta'r,::-h 

of  al!  the  ships  helor.^incr  Vj  m 

ferent  p<-jrts  of  France,  un^ier  -']:f.  fairh 


rh  the  Cir.tain   [of  the  priva- 


eil  wouM  'ead  to  tr 


'ndf-mnation 


ize  the  cruisers  of  the  R 


■it;on  actually  fou-.^!  in  the  dif- 
!  '.;  rititho-- 


. r  'r''at:e- 


epu.ji',':  t-,.  capture  ail  our  mer.-hantme 


Mr.  Pinckne>  aftefAaris     Mav   I',  i; 


ib:d.   171 


write 


Our  papers  are.  a^ 
laws  of  our  countrv. 


"^  to  t:>,-  mar:t;mr 


And  again  'June  28.  IT^'T  ibi.i   [7r 


Mr.  A'iet  [the  French  •".:':-?•, 
can  ship  without  a  »• '  .-  i'.  vc 
— avre  -.rfer-;    tha-    ' 

v;nced.  with  all  -.ther  pub/.ot- 
neces.sap.-.   and  that  il'   -i-.ir   w 
f:rmable  to  the  mcd^!  ir.r.-'x-,-' 


a-rr. 


:d   1!    H 


.\r^ 


.\meri- 

:me   .iii 

ave    t>-pn    con- 

:-.0t 


b. 


.Mr    Pxkerni? 
i  1798.  !,-.<i.  -i: 


r.er.  Seor 


-tate,  wr;te  "he  -ext  vear   '  Dec 


:  .lere  :s  no  snadi.  .v  .■/ 
r-ench  '}•  vernment  ,t  -.-<;  r.ei- 


:at:on  f'jr  'he  claims  ,et  up  b 


.f 


ei:c--:'v   a   vu 


-e;-  oe-.n? 


V  tr...; 


iefault  :t  express  -r;ar-.  cr- 


ur  mer.-hantmer;  :ia-.  -^nr: 


'j<-s  ernn-.ent  can  'jrescrb< 


■eai  :.:e    leta. 


".uir..':er   ;t  the  pa:;er 


nev  ir 


to   :arr-,-    nor 


•:er-:r.antmen  f.}r  ni  n-cotrt 


form  and 
M'e  tn<,.se 


-  'e  iei^tiro  c- 
;:ear:y  illeffa;  and 


!C:oa.  st;itu 


IS  ves-e;.    ir.d 
:u-t;nabie. 


.'.e    ieiendanti    -i: 


furiier 


1  pr:.:e   :  nr   '-a 


A  is 


le^a. 


It  v:cn 


-irts  ire  tina! 
far  a.s  ^le  >■ 


;a..  u: 


.rr.   r.i. 


■;on. 


-r^r-tdinr^ 


c-c-rTic     t 


•if-  eiementar;/ 
"Tnedv  in  r;  ^ 


y^  JUnr.MENTS  OF  THK  COURT  OF  CLAIMS 

local  c.nirts  l>cforc  ho  can  fall  back  upon  his  Govcnmicnt  for  diploma- 
tic redress:  he  must  then  present  such  a  case  as  will  authorize  thr. 
Government  to  ur^e  that  there  has  l>cen  a  failure  of  justice,  lie 
.hplomatic  claim,  therefore,  is  based  not  more  ui>oii  the  original  wrong 
„,HMi  which  the  court  decide.1  than  up»ni  the  action  and  conclusion  .  : 
the  court  Itself,  and.  diplomatically  speaking,  there  is  no  claim  uir.:. 
the  courts  have  decided.  Ihat  decision,  then,  is  not  only  not  final,  b,::, 
on  the  ftMitrarv.  is  the  iKgrnning.  the  very  corner-stone,  of  the  inter- 
national conttvnersv.  This  leads  us  naturally  to  another  p.mit  m..:.. 
'>v  the  defense  m  that  the  claimant  did  not  "exhaust  his  remci). 
hecuise  be  d-d  not  prosecute  an  api>ea).  We  of  course  admit  t; ..-. 
n<n.illy  there  is  no  foundation  for  diplomatic  action  until  a  case  o  ;- 
nir-iMc  bv  the  U.cal  courts  is  prosecuted  to  that  of  last  resort:  but  :  - 
d.vtnne  involves  the  admission  that  there  are  courts  freely  open  t;  ::  r 
claimant,  .ind  that  be  is  unhampered  in  the  protection  of  his  r.  :■ 
:hcrcm.  mc'.udmc  bis  right  of  appeal.  It  is  within  the  knowlea-e  : 
every  casual  reader  of  the  history  of  the  time  that  no  such  cor.  ■  .r 
of  aliairs  in  f.ict  then  existed. 

The  \crv  v.ilu.ibie  rcivrt  of  Mr.  Broadhead  shows   (,pp.  6  an: 
that  •>nor  to  March  -V.  IStW  there  was  practically  no  appeal  .r.  :--:s: 
cases  except  to  the  department  of  the  Uiire-Inferieure:  in  the  •.  - 
existinii  state  of  bad  fe^Ming  and  modified  hostilities,  and  ur.:-  :- 
surroundms;  circmr.stances.  this  was  to  the  captains  of  the  scire :    -■ 
sels.  m  most  if  not  m  xV.  cas.-s.  a  physical  impossibility.     N"  :"  :" 
to  the  acreemert  of  1S(.\>  was  there  any  practical  reason  for  .-;:r^:-^  ".: 
to  a  court  when  the  result,  as  our  se.imcn  believed,  whether  r.;:  : 
not.  but  .stii:  honestly,  was  a  foregone  conclusion,  and  while  -•..  '  i- 
;.ons  were  j-roirrcsMnj;  for  a  tenement .  nor  is  there  anyth-irc  r  :■:-? 
rr Cot-.it vns    sivwinsr   that    a   technical    exhaustion    of    lepai    -'-: 
wov''  be  r<^^ni'■*^-■^      '^^  <^  ^'^^  ^'"  <"?'"'<>"  *^^^  ^'^^  claimar.T  •.»!- 
imder  the*?  purely  exceptional  circumstances,  obliged  to  pr-er-v.  ■  • 
case  through  tlie  highest  court,  even  if  he  could  have  dor.c  s:    y    • 

we  doubt. 

Th:s  court  if  forbidden  by  the  act  conferring  iurisdictK-.  -• 
to  ex.amir.e  claims  embraced  in  the  treaty  of  180.^.  which  we  -.;.■-  r  ■- 
fdered.  b-:t  also  th:se  allow€>l  and  paid  in  whole  or  in  part  -J'-f    •• 
treatv   cf   l?!'*  with   Spain  and  these  allowed   in   whoie   rr  :-    ' ■' 
^._^fr  ;v-f  trestv  of  l^.'l  with  France. 


•ft'ere-.-e  here:of:re  rrade  -in  thi-  --.pini-r'n  to  the  Spi-^' 


r^-.*  r^'^'f^  - 


289 


Lt  iurticienr  'r,   sncv 
icaj  ov  i  :'trx.:.  zrr 


-t-.-.eii   ■.^.•.7.f.': 


^:;.-.i:Ki:ner; 


-'.a.c'. 


i   -'  .  -^.r,'.    ir.r*; 


-a  -  n^.i      .&. 


.rtei.. 


::;r.siiierir.i:r.    ::   rn;.;.    zise. 


-.ent. 


:.nf.  zT^itr 


"J:z^. 


-:  >X  >X 


V  '  ..f'    'rf. 


^'a:*:    -,n  -ner  -a: 
•J  "G   :r;:er   :ia:m 


:e^.-;h^ 


■'X  vx 


:r  ".:it  ^;u:- 


.:e    :e:-?r.  lonti     -r.-' 


;:^i-   -.<r  -^, 


:a.:e  vr.;    I-'-nr 


:r;ert  -ne  :r-  :5r? 


-.?-■    -.T  -.:.'    ,-iT.r- 1  ir-.T-tr  . 


"inc;>  'mr 


1  -«#»—.--:  — 


:-<*■;    iriit     :^r:r,:' 


leai;  .5-iie:'     ii:r 


"<    .'— •:;ra- 


If?  ".m«*  ;  -'".n '!»:-•   :r 


ir-.f".    ^f'-v-"— 


*^»^-^  - » 


■i:^- 


,f»*  i,-*'>—     -^ 


i 


290  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

clusively  to  the  United  States,  recognizing  the  force  and  effect  of  what 
was  called  the  "retrenchment  of  the  second  article."  The  French 
Government  clearly  understood  this  treaty  of  1831  as  excluding  all 
American  claims  of  every  description  originating  prior  to  the  treaties 
of  1803.     (Ex.  Doc.  147,  22d  Cong.,  2d  sess.,  p.  165.) 

Our  commissioners  who  distributed  the  funu  also  so  understood  it, 
and  required  every  claimant  to  show  that  his  "claim  remained  unim- 
paired and  in  full  force  against  France"  in  1831.  (House  Ex.  Doc. 
117,  24th  Cong.,  1st  sess.,  p.  4.)  But  these  spoliation  claims  had  not 
only  been  impaired  but  destroyed  as  a  French  obligation  by  the  treaty 
of  1800;  many  cases  of  captures  made  prior  to  September  30,  1800, 
were  presented  to  the  board  and  rejected.  (Sumner's  Report,  p.  35.) 
A  broad  distinction  is  made  in  the  remedial  statute  (January  20. 
1885)  between  the  claims  described  in  these  different  treaties  of  180.1 
1819,  and  1831.  As  to  the  treaty  of  1803  the  act  does  not  extend  to 
claims  "embraced"'  in  its  provisions;  as  to  the  treaty  of  1819  the  a:t 
does  not  extend  to  claims  "allowed  and  paid  in  whole  or  in  pan ' 
under  its  provisions;  as  to  the  treaty  of  1831  the  act  does  not  e-xtciid 
to  c'aims  "allowed  in  whole  or  in  part"  under  its  provisions.  It  is 
not  contended  that  this  claim  was  "allowed  in  whole  or  in  part"  under 
the  provisions  of  the  treaty  of  1831. 

We  have  not  considered  the  point  that  the  treaties  of  1778  were 
abrogated  by  the  act  of  Congress  passed  in  1798.  That  queftior. 
which  the  ablest  minds  of  the  period  were  unable  to  solve,  and  \.1-k 
proved  an  ever  present  and  enduring  obstacle  to  all  negotiation  unt:. 
forcibly  removed  by  Najxileon.  with  our  concurrence,  we  fortunately 
are  not  forced  to  deal  with.  The  rights  of  this  claimant  rest  up-  " 
no  convention,  but  are  founded  upon  international  law.  Treaty  .  r  r : 
treaty,  a  foreign  nation  can  not  be  permitted  to  confiscate  an  .Amerv?.: 
merchantman  engaged  in  legitimate  commerce  upon  the  high  seas  ^.e- 
cause  his  crew-list  does  not  fulfill  the  requirements  of  that  natirr. ■^ 
local  ordinances.  That  the  act  of  Congress  was  binding  within  ti.f 
jurisdiction  of  the  United  States  and  was  necessarily  to  be  so  re- 
garded bv  our  courts  does  not  now  admit  of  question.  The  treate- 
were.  however,  not  only  part  of  the  supreme  law  of  the  land  where.". 
ihev  were  replaced,  within  I  'e  jurisdiction  of  the  Constitution,  bv  a 
later  supreme  law.  to  wit.  a  statute :  but  tlicy  were  also,  as  betweer,  ;:  e 
two  Republics,  contracts,  which  one  of  the  parties  attempted  to  annu 
Treaties  containing  no  clause  fixing  their  ilur.ttion  are.  under  cer:.^' 


GRAY  V    CN'tTED  STATES 


291 


drcmnstances,  voidable  at  the  option  of  one  party.  Uhether  there 
existed  in  1798  ?uch  crcum-tances  .1,  authorized  and  made  valid  an 
abrogation  of  the  treaties  of  177^  by  the  United  States  wa,?  the  very 
question  left  unsettled  by  the  treaty  of  l^-fi,  the  one  question  upon 
which  by  no  possibility  apparently  couid  the  parties  agree. 

For  the  same  reason  we  find  it  unneces-ar>  to  examine  how  far  the 
French  violated  the  a^eerr.ent  by  their  treat v  .-.f  1786  %-ith  Great 
Britain  (  15  Manen^  Re:u-:-l  de  Trzitc:.  2  ed..'vol,  4.  p.  1-.:;,  or  the 
effea.  by  w^y  of  abrosraticn  of  the>e  agreemer.ts,  of  the  Jay  treaty, 
or  the  change  in  the  form  of  »overr.mert  ir.  France. 

S.:ffle  argument  ha=  beer,  made  a-  r~  the  o.-.rership  .-,{  this  claim 
base-i  upon  the  prov.ion  of  -he  .tature  t^at  -he  court  -hall  determine 
••the  present  ownership,  ani  ::  hy  a.-^?nee.  -h^  date  of  the  a-ignment 
w:th  the  consideration  paid  there:  ;r  -  ;  3  ,  Whatever  mav  have 
been  the  intention  of  Ct!t?re<!:  ■-  :--=erin?  -hi.  :,rovi  =  ;on.  its' terms 
are  p-erfectly  clear-  the  r.r.'irgs  -,f  f-i,:t  -ht-.v  i-  this  ta^e  that  the 
ciaimxit  is  the  admmistrat.or  -.vth  the  -k-W  annexed  of  the  oivner 
.:f  the  SiUy.  and  ±ow  ali  trher  facts  nece-arv  V:  a  decision  upon 
the  -ufc:ect.  except  as  t-  ore  t:  -!-.  defendant^'  points:  as  to  this  we 
can  not  a?ree  that  C.cn?-e<^  ir-enied  this  court  to  perform  -vhat  is  in 
eiTect  a  phvsica.  imp^^-ih  h-y  ,nd  -^  -hr-..  -.y.r.  ^s  -he  ta:!c  of  orobate 
:cu-s  in  the  inve<tm::or  -f  ti:e  r?-ts  of  -housards  of  descendants 
md  devtsees  of  ±e  rie-nai  tiai-ants.  -vK-  ^-e  now  scarered.  in  al! 
h-cman  probabi'.ir/.  to  the  f-ur  ct:arer^  of  the  z'oS-^e.  To  ask  this 
:ou-  -0  r-  '-=i'^^  --  -he  vear  '.-rf    ^-.i   f    'o  v   f--m  -hat  -ime   io*n 

do  that 
.-■;v,'i... 


'ha- 


:r. 'ie-  -he 
a  - I  «. 


-:-e  '-z-'zi^'icK  tf  -^^  ere-  -he-t  ^x;--tc  -'air-art  ■-  'o  ask 
^-ich  imier  cur  jurtsdictt.-r  and  cr-je--  k-  K.i  he  ar  ■moo^  =  ,:.: 
A  -;:ch  more  reasrrnhie  inti^rtretatv  r  -f  ^-e  -,■'  i—ea-  -lorr 
fic-.  irtd  icpiyng  thir  :ntert;retat:,-n  -0  -hi-  -a^e  .v  >  '-a  -  'v.--'. 
-he  :;a;marir,  a-  admiristrat tr  t:  -he  :>-,»-  ;-  t^-*  -t:-.-^-:er  S'ii:- 
:'-e  ■•V-.'-  :'  'he  :;aim.  W'^  ----ide-  -  c  -ar*  :■  -■;-  - 
-ta-i:te  -■  place  lur^eive^  n  the  -«t-=itir,i-  ■•  -.  -.ci;—  --  -,- 
'c  -0  '_:ngre<s  -he  mainer  -i  vhi.--  i--  i-:ma--  -ec'— ■•  :;-o';i  ! 
-r  i-^-  -he  laws  cf  the  -hi— /--'icr''-  -f---;  '- -  -t'--  -^— — ^'  -;  ^;-.- 
---.■:r.  h^  ^istrbuted  amrru  -he  -ii:— e— -;;  ---•;t  tf  <-^  -  -je-  ^ee-  o' 
■■2  -^•^--:  -a:man-=  aid  -he-  i-.-^-da-^  --e  =  i";-;  — ar^rs  are 
:,..—  .  f  -;. ..^  --era-  ",;-=  .,r  —  ■-  •'t^-  ■■;-•-,;:,-.-  ard  -on- 
-.  Ktd  -'«i:~a-t  ■  --^r-  -^ed  i>'-.-:a-.'  f-d^  ^t-  -he  horte^t  and 
"--er  tertf-man.-s   tf  -he  tr-.^t  -■"-■ -ed    -    ■:-'^^ 


292  JUDGMENTS  OF  THK  COURT  OF  CLAIMS 

Congress  asks  us  for  two  facts:  First,  the  present  ownership. 
The  owner,  both  in  law  and  equity,  the  Supreme  Court  has  said,  is  the 
administrator  (VilLlon^<as  Case,  23  Wall.  35),  and  that  suffices  for 
this  particular  case.  Secondly.  Congress  asks,  where  there  has  be.-n 
an  assignment,  not  only  the  name  of  the  present  owner,  but  the  date 
of  the  .issignment  and  the  consideration  paid  therefor.  Of  course 
these  facts  will  be  reported  when  such  a  case  is  presented. 

So  we  reach  the  end  of  this  opinion  as  unlike  the  usual  judicial  ex- 
pression in  its  form  and  supporting  authorities  as  are  the  cases  be- 
fore u.  unlike  those  or.linarily  submitted  to  a  tribunal  of  the  lav. 
We  are  however,  for  the  moment  invested  with  some  of  the  power? 
and  jurisdiction  belonging  to  the  political  branch  of  the  Govemmeiu. 
and  upon  us  is  imposed  an  examination  not  usually  or  naturally  com- 
mitted to  a  judicial  body.  We  have  been  required  not  to  investigate 
legal  rights,  based  upon  the  doctrines  and  principles  of  the  common 
law  but  to  inquire  into  and  to  report  upon  the  ethical  nghts  ot  a 
citizen  against  his  Government:  rights  which  are  never  enforceab.e 
except  by  the  consent  of  the  sovereign— in  this  country  the  legislature 
—as  whose  substitute  we  act  to  the  limited  extent  prescribed  a>^l 
marked  out  bv  the  remedial  statute. 

The  result  which  we  have  reached  is  supported  by  resolutions  passe 

in  each  of  the  thirteen  original  States,  by  twenty-four  reports  mad': 

to  the  Senate  by  its  committees,  by  over  twenty  similar  reports  made 

to  the  House  of  Represematives.  by  the  fact  that  while  three  adverse 

report,  have  been  made,  one  to  the  Senate  and  two  to  the  House,  r.^ 

adverse  report  has  been  made  in  either  body  since  the  publication  oi 

the  correspondence  in  1826.  and  by  the  further  facts  that  the  ^cn:.te 

has  passed  eight  bills  in  favor  of  these  claimants,  and  the  Hou^e  !r- 

passed  three  of  these,  of  which  one  is  the  present  law,  the  other  tv.- 

having  been  vetoe.l.  one  by  President  Polk,  substantially  upon  gr -.;:■.  :r 

not  at  this  time  important,  the  other  by  President  Pierce  for  res'-'r^ 

which  we  have  considered  very  fully  in  this  opinion,  and  with  whi:l-. 

after  the  most  careful  and  painstaking:  consideration,  we  can  not  a<:ree 

The  arguments  of  counsel  for  claimants,  marked  as  they  were  '.■■ 

ahititv.  industry,  and  a  frank  desire  for  a  just  ascertainment  of  the 

rights  involved,  have  been  of  great  a-sistance  to  us :  while  the  learrc. 

assi^ant  attorney  for  the  United  St.ites  has  presented  the  defence  «•;:- 

a  zeal  and  force  of  argument  which  we  do  not  find  in  the  hist.^r^  c: 

the  '  ■n<'  discnsMons  it  has  heretofore  received. 


CUSHI.V,  V.  CN'nKD  STATES 


l'}7> 


The  chief  justice  ari'l  all  the  ju^I^es  concur  in  this  opinion,  and  wc 
jhali.  in  accord.ince  with  the  ='a'Mte.  re-.ort  to  ""or.cjrLS-,  \:.(:  conclu- 
sioH'-  of  fact  and  law  'r.  thi«  claim,  rrt^'-KV f-x  with  a  c',:,v  of  thi^  opinion, 
which  contains  i  u-in^r  the  wor!,  of  t:  c  -tatwtei  '':.<-.  c  r.il'i^ion-  which, 
in  our  judgment,  ■■affect  the  liihility  of  the  Un;ted  .--.atf;.  therefor." 


THO.^rASCU^^fr^ 


■<').  Ar..\r: 


THE  '.'.-.TTF.D  .STATE.S- 


[French  Sooli.iti.v:-  N'- 


"2.    Xif.cvifA  D-r»?rr.ber  0   I«.-'/',l 


On  the  D-:*:ndints  M 


mon 


T're  jeneral  question  --f  the  liahi 


•"'T    Tr-^    L."'.tr=: 


ra.-ce  r  y  t.i-.e  t.-e-:t 


m'?r.t  move  for  a  re'r.-'arir?      .\\\ 
arjt:*'^  and  r!cor.5ir'.»re'!. 


The  Fr- 


encr.  ^ociiaricr.  '.a- 


t   ;'*  — .air.ta:: 


riuh-  foundtf'-l  1:^  : 
of  the  !aw  and  t'.ie 
tern;ir.e''.    ur^ie-    1 


■  .-*,-.  .<  .- 


.Jtt.    ttB"!,- 


:fi:.'rif.3*:  ;r,; 


II.  T' 


tac  L.  2So 


:e  ;"est:cn.  •*-;-.at  are 


ry   an 


!  15  =-;V-c*^  of  :-?al 
w:-h  f-.:!!  kr:-wl-.!?e 
irv^sti?,-)! -"'  a-yi  de- 
viz..    ■'.'  ■■^    /,9 


jr'n'--    .>•. 


'■;'"t",:;-'  M? 


■k  r,; 


cbliaraticn: 


III.  The  our 
shall 


^f  *he  Frerch   Sjr 
Lhe   political  '-.ra.-. 


ISf: 


licial 
and 


-.e  .'udirial 
in? 


-'(**i--^'. 


certax  nsrits  r..:t  «r 


r ircea'ie 


*:':r:r    a.-»   r.—.-errele- 


.t'iiffat:ry  ur.<ier  irterr.atic.nal 


:?rr.    Ani^r 


Lir.taired  'zy  Frir.ce,  and  -••'ea.--*'.  ■■  — ;   •':- 


henencial 


vr,:%  r.ancr. ; 


ar  inii^periahlc  prere!-;u:--::e  :,:    ; 
•;:rcurr:-r.ar.cei  '5  r^-  'iet-r.-e  :".  "h 
r  is  the  p'irpi:se  ct   the   Spciiaf.'-.r. 
w-.ether  each  claim  brcu^i-t  '"e:"-- 


-  -  r  I-  A  ,^-'  ~ 


■'*    frs-r 


■A-ret.ier  the 


Unite.i 


;ra:-"i  hecar 


N"e;:h. 


er  criarr.ai 


r:-.e  publis 


.!-i;^t-,  J  ,-, 


:  copies 


^ual. 


•-    :a:t;r,r.,   -^..icr.   15   rot  a  part 


^r  a  treaty;,  ar.'i  is  usually 


• -ourt  .:i  (..iairrs  rteO'.rts.  v"t. 


m 


i    m^ 


294 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


VII   The  treaty  was  not  a  treaty  of  peace,  nor  d.d  .t  conclude  or  recognire 
a  state  o*  war  or  a  condition  of  hostilities.    The  decision  m  Ba    v. 
Tingy  (4  Dallas,  37'),  and  the  statutes  to  which  the  decision  refers, 
examined  and  explained. 
VIII   The  treaty  is  not  an  adjudication  of  these  claims  adverse  to  this  Govern- 
ment.    Its  own  terms  negative  that  assumption;  so  do  the  negotiations 
which  led  to  it.  and  so  does  the  act  of  1885. 
IX.  The  reprisals  of  this  country  upon  France  were  most  limited  in  their 
nature;  were  allowed  by  the  natural  laws  of  self-defense,  and  defined 
and  regulated  by  acts  of  Congress  which  were  defensive  in  character 
allowing  French  merchantmen  to  pursue  their  voyages  unmolested  and 
to  refit  and  provision  in  our  ports. 
X   The  seizure  of  an  American  merchantman  can  not  be  justified  by  the 
fact  of  her  having  been  armed  for  defensive  purposes.     During  the 
last  century  substantially  all  vessels  were  armed  agamst  pirates. 
XI.  Condemnations  of  prize  courts  are  final  in  actions  b«ween  individuals 
and  as  to  the  vessels  condemned,  giving  purchasers  a  good  title  as 
against  all  the  world,  but  do  not  bind  foreign  nations  nor  bar  claims 
valid  by  international  law.  ,       t-.    ■ 

XII.  The  rights  of  prize  courts  are  the  rights  of  the  «pturmg  sU  es^  Their 
decrees  do  not  relieve  the  sUte  from  responsibility  nor  preclude  other 
powers  from  seeking  redress  or  investigating  the  captures  de  novo. 
XIII  The  absence  of  a  ship's  papers  may  be  punishable  within  local  jurisdic- 
tion as  a  police  measure,  but  never  by  absolute  confiscation,  if  it  be 
shown  that  the  vessel  was  innocently  pursuing  a  legitmiate  voyage. 

The  Reporters'  statement  of  the  case : 

The  cases  now  argued  and  submitted  are  the  same  as  those  deter- 
mined at  the  last  term  (21  C.  Cls.  340.  430),  the  present  motion 
being  merely  a  means  for  reviewing  and  resubmitting  the  legal  ques- 
tions previously  considered.  The  cases  were  reported  to  Congress  on 
the  same  day  that  this  motion  was  decided.  The  findings  in  those  cases 
are  given  below. 

The  Schooner  Industry 
No.  132.  Thomas  Gushing,  administrator  of  Marston  Watson. 
No.  258.  Charles  F.  Adams,  administrator  of  Peter  C.  Brooks. 
No.  258.  William  Sohier,  administrator  of  Nath.  Fellowes. 
No.  1918.  H.  W.  Blagge  an    Susan  B.  Samuels,  administrators 
of  Crowell  Hatch. 


1  Sufra,  p.  104. 


GUSHING  V.  UNITED  SI  \TES 


295 


FINDINGS  OF  FACT 

These  cases  having  been  tried  together  before  the  Court  of  Claims, 
Willia-Ti  E.  Earle,  Esq.,  appearing  for  Thomas  Cushing  and  Charles  F. 
Adams,  Edward  Lander,  Esq.,  for  William  Sohier,  and  George  S. 
Boutwell,  Esq.,  for  Blagge  and  Samuels,  claimants;  and  Benjamin 
Wilson,  Esq.,  assistant  attorney  in  the  Department  of  Justice,  with 
Robert  A.  Howard,  Assistant  Attorney-General,  for  the  defendants, 
the  court,  upon  the  evidence,  finds  the  facts  to  be  as  follows : 

I.  The  schooner  Industry,  a  duly  registered  vessel  of  the  United 
States,  of  which  Benjamin  Hawkes  was  master,  sailed  on  a  commer- 
cial voyage  from  the  port  of  Boston,  Mass.,  June  1,  1798,  bound  for 
Surinam  with  a  cargo  of  merchandise,  both  owned  by  Marston  Watson, 
a  citizen  of  the  United  States  residing  in  said  Boston,  now  deceased; 
said  vessel  was  lawfully  pursuing  her  voyage  when  she  was  seized  and 
captured  on  the  high  seas  by  the  French  privateer  Victoire,  Captain 
Bandry,  on  the  26*''  '  Tuly.  1798,  and  was  taken  into  the  French  port 
of  Cayenne,  and  ther     ibeled,  condemned,  and  sold  as  a  prize. 

II.  The  sole  ground  of  condemnation  was  that  the  role  d'equipage 
which  she  had  on  board  was  "signed  only  by  one  notary  public,  with- 
out the  confirmation  of  witnesses,"  and  that  there  was  written  on  the 
back  of  said  role  an  unsigned  certificate  that  a  role  d'equipage  was  un- 
necessary. 

III.  The  value  at  the  time  of  said  seizure  was  as  follows : 


Vessel   $1,500 

Freight   2,500 

Cargo  of  merchandise 10,555 

Cost  of  insurance 4,000 

Total  value   $18,555 

IV.  Said  Watson  had  insurance  thereon  to  the  amount  of  $12,000, 
which  the  claimant,  Cushing,  his  duly  app>ointed  administrator,  admits 
was  paid  to  said  Watson,  or  that  he  is  chargeable  with  the  receipt 
thereof.  Crowell  Hatch,  William  Smith,  David  Greene,  Benjamin 
Bussey,  and  Nathaniel  Fellowes,  all  citizens  of  the  United  States,  were 
among  the  insurers,  each  for  $1,000.  through  Peter  C.  Brooks,  also  a 
citizen  of  the  United  States,  an  insurance  broker,  which  said  sums  were 
paid  to  said  Marston  Watson  on  or  before  February  20,  1799,  as  for  a 
total  loss  of  said  schooner  with  the  cargo. 


t 


•a  > 


296  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

\-  Henry  W  Blagge  and  Susan  B.  Samuels  are  the  duly  appointed 
administrators  of  said  Crowell  Hatch,  deceased,  and  Wilham  Soh.er  .s 
the  duly  apiXDinted  administrator  of  said  Nathan.el  Fellowes.  deceased 
and  in  their  said  representative  capacity  they  are  the  present  owners  of 
the  claims  of  their  respective  intestates  above  set  out. 

VI  Said  Smith,  on  the  15th  of  December,  1801,  in  consideration  ot 
$4  000  and  the  assumption  by  said  Brooks  of  all  the  disadvantages  ot 
the  said  Smith  as  an  underwriter  in  the  office  of  the  said  Brooks  an,l 
said  Greene,  on  the  23d  of  December,  1801.  in  consideration  of  $6,000. 
and  the  assumption  of  the  disadvantages  of  said  Greene  as  an  under- 
writer in  the  office  of  said  Brooks  and  said  Bussey,  on  the  15th  oi 
February  1805.  in  consideration  of  $10,000  and  the  assumption  bv 
said  Brooks  of  the  disadvantages  of  the  said  Bussey  as  an  underwriter 
in  the  office  of  the  said  Brooks,  assigned  to  said  Brooks  all  thar  re- 
spective underwriting  accounts  in  his  said  office;  and  said  Charles  ■ 
Adams,  administrator  aforesaid  in  said  representative  capacity.  .^  tlu 
present  owner  of  said  claims  so  assigned. 

VII  Said  claims  were  not  embraced  in  the  convention  between  ilu 
United  St.ites  and  the  Republic  of  France  concluded  on  the  .^Oth  <.'. 
April  1803.  It  was  not  a  claim  growing  out  of  the  acts  of  1t;.ik.-. 
allowed  an.l  paid  in  whole  or  in  part  under  the  provisions  of  H:, 
tre.itv  between  the  United  States  and  Spain,  concluded  on  the  2.d  ot 
February  1819,  and  it  was  not  allowed  in  whole  or  in  part  under  tlie 
p.rovisions  of  the  treaty  between  the  United  States  and  France  of  tl,- 
4th  of  July,  1831. 

CONCLUSIONS  OF   I. AW 

The  court  finds  as  conclusions  of  law  that  said  seizure  and  o.n- 
demn.-.tion  were  illegal,  and  the  owners  and  insurers  had  valid  dau..^ 
therefor  upon  the  French  Government  prior  to  the  ratification  f.t  the 
convention  between  the  United  States  and  the  French  Kepu!.li>.  r,m- 
clude.l  on  the  3nth  day  of  September.  1800,  and  were  entitled  to  ilic 
following  sums : 

Marston  Watson,  owner  of  the  vessel  and  cargo ^niiiV) 

Les«  the  amount  of  the  insurance '-^  ^ 

BalnncP '" " 

William  Smith.  David  Greene,  and  Benjamin  Bussey,  repreMtited 
by  ("liartes  Francis  Adams,  administrator  of  Peter  Chardon  nro.iks, 


GUSHING  V,  UNITKD  STATES 


297 


assignee,  Crowcll  Hatch,  and  Nathaniel  Fellowes,  each  $1,000,  the 
amount  of  insurance  paid  by  them  respectively. 

Th:.'i  said  claims  were  relin(iuished  to  France  by  the  Government 
of  the  United  States  by  said  treaty  in  part  consideration  of  the  re- 
linquishment of  certain  national  claims  of  France  against  the  United 
States. 

The  conclusior-s  of  law  which,  in  our  judgment,  affect  the  liability  of 
the  United  States  therefor,  are  set  forth  in  the  opinions  of  this  court, 
delivered  May  17  and  24,  and  December  6,  1886. 

The  Schooner  Dclit^ht 

No.  .=105.  George  Holbrook,  administrator  of  Edward  Holbrook. 

No.  249.  Charles  Francis  Adams,  administrator  of  Peter  C. 
Brooks. 

No.  249.  Ebenezer  Gay,  executor  of  the  last  will  and  testament 
of  Ft)enezer  Gay.  who  was  assignee  in  bankruptcy  of  Thomas 
English. 

No  249.  Charles  T.  Hunt,  administrator  of  Joseph  Russell, 
surviving  partner  of  JctTrey  &  Russell. 

No.  249.  Henry  W.  Blnggc  and  Susan  B.  Samuels,  administra- 
tor and  administratrix  of  Crowell  Hatch. 

No.  2.=;2.  Charles  Francis  Adams,  administrator  of  IVter  C. 
Brooks. 

FINDINGS  OF  F.^CT 

'Ilusc  cases,  involving  a  claim  under  the  act  of  January  20,  1883, 
wore  iieard  by  the  ("ourt  of  Claims.  The  claimants  were  'rei)resented 
by  William  ]•;.  Earle,  E.sq..  Messrs.  Shellabarger  &  W  ilson,  and  George 
.^.  I!(nitue!l,  b".sc|. ;  and  the  defendants  liy  Henjamin  Wilson,  E.sq.,  assist- 
ant attoruy,  with  whom  was  the  .Assistant  Attorney-C>eneral.  After 
iu.inng  the  parties,  their  proofs,  and  arguments,  tlie  court  from  the 
evickiuc  tiul  the  facts  to  be  as  follows: 

I  Tba  the  schooner  Delight,  an  .Xnuricnn  registered  vessel  of  78 
.md  a  fr.-.cfion  tons,  owned  by  Asa  I'ayson  and  Edward  Holbrook, 
linih  of  Bo'^ton.  Mass.,  .sailed  upon  a  commercial  voyage  from  Boston 
10  .'^t  H.irtbolonicw's,  June  22,  1799,  laden  with  a  cargo  of  b.icon,  soap. 
o.i:vHfs.  Ijutter,  and  similar  go<ids 

II.  Thai  said  vessel  and  cargo  were  owned  l>y  Fnyson  &  Holbrook, 


t) 


2,,j,  JUDGMENT.  OF  THE  COURT  OF  CLAIMS 

^v,th  an  adventure,  belonging  to  Stephen  Curti..  the  captain,  all  of 

^'uT  St;ir2:"  ^  t^  o^s  ohta.nea  of  Peter  Chardon 
BroLks  a^licy  of  nsurance  on  said  schooner  for  $1,500.  and  on  sa.d 
car^o  for^.5&.  whereon  the  hereinafter  nan,ed  insurers  underwrote 

''it' That  on  June  21.  1799.  Stephen  Curtis  obtained  a  policy  of  in- 
.sul.n„ce  of  $506  on  his  adventure,  whereon  Tuthill  Hubbart  under- 

"TCthe  schooner  DrligHt  and  her  cargo  was  -ptured  by  the 
F.ench  pr.vatecr.  La  Couragcusc,  Captain  Vend,bourg.  July  19.  1/99. 
nnd  condemned  at  Guadeloupe. 

V     "tat  the  sole  grounds  for  the  condemnation  were  that  a  part 
of  the  cargo  was  English  merchandise,  and  that  the  role  d  c,u,t^ujc 

''' Vl'rThalthe  cargo  contained  nothing  contraband  of  war.  under 
the  treatv  of  February  6.  1778.  and  nothing  English 

vTl  That  the  cargo  owned  by  Payson  &  Hdbrook  was  worth 
$S9  9  and  the  insurance  ,>aid  thereon  being  $4,500.  they  lost  on  the 
c^reo"^  459-  that  the  schooner  was  worth  $3,243.  and  the  .nsurattce 
;r.lfell  JK-ing  $1,500.  the  loss  therc-on  was  $1.743 ;  that  the  frc.ht 
was  reasonably  worth  $2,500.  that  the  insurance  premium  pa.d  w,. 

$600.  making  $6,302.  . ,   , 

IX  That  the  said  underwriters  named  m  Finding  No.  Ill  paj^l  t^e 
.aid  several  sums  for  which  they  underwrote,  amounting  to  >^,W 
and  Tuthill  Hubbart  also  pa  1  the  amount  for  which  he  under,  rt. 
as  fo.  nd  in  Fin.ling  No.  IV.  and  thereupon  the  insured  abandonc.  .c 
the  underwriters  in  writing  to  the  extent  of  the  insurance^ 

X  Crowell  Hatch.  TMthill  HuWvirt.  William  Smith.  Jeffrey  &  Kt.  ■ 
.ell.' Benjamin  Homer.  Thomas  English.  David  Greene.  Dame  Dcr^ 
con  Rogers,  all  citizens  of  the  United  St.ites.  were  insurers  fo.  ... 
mo.Z  sums.  .0  wit:  S.nid  Hatch.  Hubbart.  Smith,  an  Jeffrev  . 
Kn..ell.  each  in  the  snm  of  $1,000.  said  Homer.  English,  .reene.  .,.. 
Roger.,  each  in  the  sum  of  $500.  through  Peter  Chardon  Hrook^  a  v 
a  citirrn  of  the  United  States  and  an  insurance  broker,  which  -.  . 
.urns  were  paid  to  the  said  Payson  &  Holbrook  before  Janu.rv 
1800  as  and  for  a  total  loss  of  said  schooner  and  cargo 

xi    Tuthill  Hubbart.  a  citizen  of  the  United  States,  was  att  -r- 
in  the  mm  of  $500.  through  Peter  Char.lon  Brooks,  a  ct.ren  ot 


■>: 


rcSHIXr,  V    UMTED  STATES 


Hf) 


United  States  anrl  an  insurance  broker,  which  .-aid  -.um  w.i-  \,:\\r\  to 
Stephen  Curtis  before  Januar>-  25,  1800,  as  and  tor  a  tot?l  loss 
of  his  adventure  on  boarii  of  -aid  =chrjoner. 

XII.  Henry  \V.  Blagge  and  Susan  H.  SamueU  are  the  duly  apMinted 
administrators  of  Crowell  Hatch,  deceased,  and  Charles  F.  Hunt  is  the 
administrator,  cmwi  testamento  annexo,  -il  Joseph  Rusicl!,  deceased, 
s--:r\-iving  partner  of  Jetirey  &  Rus-ell;  and  Ebenezer  Ga;.  is  the 
executor  of  the  last  will  and  testament  of  Ehcnizer  Gay,  assignee  in 
bankruptcy  of  Thomas  English.  df:':eased  ;  and  in  their  representative 
capacities  they  are  the  present  owners  of  the  'daim-,  of  their  respective 
decedents  herein  set  forth. 

XIII.  That  said  Smith,  on  the  16th  of  Decen-.ber,  1801,  in  consid- 
eration of  S4.000  and  of  the  assum.ption  of  the  liabilities  of  the  said 
Smith  as  an  underwriter  in  the  office  of  Peter  "'hardon  Brooks:  and 
said  Greene,  on  the  2.3d  day  of  Decerr.b<T,  IsOl,  in  consideration  of 
S6.00O  and  the  assurr.t,.tion  of  the  liabilities  of  the  said  Greene  in  the 
office  of  said  Brooks  as  an  I'nderwnter :  and  said  Rogers,  on  the  19th 
of  October,  l.-W.  in  consideration  of  S.^.-^TO  and  t'  «  a-umption  of  the 
liabilities  of  the  said  Rogers  as  an  underwriter  in  office  of  the 
said  Brocks;  and  the  said  Hom.er.  on  the  2.3d  of  Ju,  i^)5.  in  con- 
sideration of  $5,000  and  the  assumption  of  the  liabilities  of  the  said 
Homer  in  the  office  of  the  sa:d  Brook;  as  an  underwriter;  and  the 
said  Hubbart.  on  the  4th  of  .\pnl.  180^.  in  consideration  of  S60.000 
and  of  the  assumptioti  of  the  liabilities  of  tht  said  Hubbart  in  the 
office  of  the  said  Brooks  a.s  an  underwriter,  assigned  to  the  said  Brooks 
all  their  respect: '-e  underwriting  accounts  in  his  said  of!ke 

\I\.'  That  said  claims  were  not  embraced  in  the  :onvent;on  between 
th-  United  States  and  the  Republic  of  Fran.-e  .rorcluded  on  'he  30th 
-••  \-:>r\.  180.3;  -hat  thev  were  nr.t  claims  ?ro-A!r.?  on-  of  the  .-,,-ts  of 
.^•"-■•e  allr-ed  and  paid  in  whole  or  in  t>art  under  the  provision-  of 
•he  treat;.-  bftween  the  United  .-"M-'-  ir.  '.  '~'-;;- 
\x-  ■•<'  February.  1819;  and  thev  '.ve-e  ;•..  f  I'.'.-.'.v,-' 
■iTiier  the  pro\"i-ions  r-f  the  •r''itv  V^n-.v—'-.  ^hi^ 
Fnr.ce  of  the  4th  of  lulv.  18.31 


Ur-r^.^ 


1    .t;  &A-  22d 
/If  or  in  rart 


-ind 


^fsrrv-  o? 


•  .''  court  r»n'i-s  .a.s  I'nnciu^ir/n^  ot   law  ':\d'   -a:  i    -eizure  an^l  rcn- 

'.'r-r.:M:'yn  were  illeenl.  an.i  the  owner=  an'.  :-.^;:->rs  '-.ad  valid  claims 

'■-•'tor  upon  the  French  •'jovemment  '■■rvjr  •"■  "he  ntification  of  the 


¥: 


300  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

convention  between  the  United  States  and  the  French  Republic,  con- 
'w  the  30th  day  of  September.  1800.  and  were  entUled  to  the  1.4- 

'°t^:n  hJS'ooU.  owners  of  vessel  and  cargo,  after  deducting 

'Tn'nnfl'^ier.  Dan.el  Denison  Rogers,  and  David  Greene,  repu- 
sented  by  Charles  Francis  Adams.  Jr..  administrator  of  Peter  Chardon 

Brooks,  each  $500.  ^  „ 

ao^ell   Hatch,   represented  by   Henry  W.   Blagge   and   Susan   L. 

Samuels.  $1,000.  t~   u    ,^  <t^  rwi 

Jeffrey  &  Russell,  represented  by  Charles  F.  Hunt,  $1,000. 
Thomas  F.nglish,  represented  by  Ebenezer  Gay.  $500 
TuthiU  Hubbart  and  William  Smith,  represented  by  C barles  Franc. 

Adamc.  Tr..  administrator  of  Peter  Chardon  Brooks.  $1,000  each. 
Tuthill  Hubbart.  in  case  No.  252.  represented  by  Chade.       ..k-. 

.\d->m<    Ir..  administrator  of  Peter  Chardon  Brooks.  $.00.  l^.  ^.u.e 

bein-  the  amounts  of  insurance  paid  by  them  respectively. 

That  said  claims  were  relinquished  to  France  by  the  Governn.c: 

of  the  Unite<l  States  bv  said  treaty  in  part  consideration  of  the  n.:v. 

quishnunt   o.-  certain  national  claims  of   France  aRainst  the   L  r,-.  . 

^The  conclusions  of  hw  which  in  our  Judgment  aflfect  the  li  i'  .: ' 
of  the  United  States  therefor  are  set  forth  in  the  opinions  ot  t.-.  - 
court  .Iclivercl  May  17  and  24  and  December  6,  1886. 

Thv    Schooner  l.itth-  Pc,;'? 
.No.  155.   Francis  Kin-  Carey,  administrator  of  Samuel  Hollin-u   -i 


FINOINCS  OF  F.VCT 

This  ci^e  wa<  heard  before  the  Court  of  Claims  May,  ISSr,. 

The  claimant  was  represented  Ly  William  E.  Farle,  F^.|..  an^!  .- 
&   Davi.l   Stewart.  Fs.,rs..  and  the   dcfen.lants  by   Beniannn   \...- 
Emi     assistant  attorncv.     After  hearing  the  parties,  their  pi'  -!- 
■ir'MiP-.r.ts  the  court  from  the  evidence  finds  the  facts  to  be  a^  !  •!  •  • 

1  1'.  1798.  Thomas  and  Samuel  Hollingsworth.  o'  wlinni  ^-r 
wa<  the  survivor,  citi/cns  of  Baltimore  and  of  the  United  Stat.-.  ^■ 
the  owners  of  the  schooner  Little  Pegg.  a  duly  registered  vesn-!  r : 
United  States. 


GUSHING  V.  UMTED  STATES 


301 


II.  In  the  same  year  said  vessel  sailed  ujxin  a  lawful  vnvagc  from 
Baltimore,  Md.,  to  Kingston,  Jamaica,  under  the  command  of  William 
Auld,  master,  laden  with  a  cargo  of  Hour,  crackers,  peas,  and  shingles, 
al!  belongintf  to  -^aid  owners,  ."-tptemher  28,  1798,  the  ve-sel  was  cap- 
tured by  a  French  privateer,  called  Le  Macanda,  commanded  by  Lewis 
Duprat,  and  carried  into  Port  au  Pai.x.  Said  vessel  and  her  cargo 
were  subsequently  cond<.:nned,  to  wit,  October  3.  1799,  as  prize,  at 
Cape  Francois,  by  the  French  prize  tribunal. 

III.  William  Auld,  the  said  master,  was  born  in  Scotland,  but  was 
naturalized  as  a  citizen  of  the  United  State-  .v.ugust  22,  1798,  and  had 
been  a  resident  of  Baltimore  since  Tanuar\-.  1795.  The  condemnation 
of  the  vessel  and  cargo  was  made  on  the  ground  that  the  master  was 
a  native  of  Scotland,  with  which  countrv-  France  was  at  war. 

IV.  At  the  time  of  the  capture  said  vessel  was  worth  .S2.000.  the 
cargo  S2.7'v0.50.  and  the  freight  SI. 200,  making  in  all  S5,9^/).50.  The 
.:!aim  has  never  been  assigned.  The  claimant  is  the  duly  appointed 
.-idrr-nistrator  de  boms  non  of  the  estate  of  Samuel  H^ '/.ngsworth,  de- 
ceased, by  the  orphans'  court  of  Baltimore. 

V.  This  claim  was  not  embraced  in  the  convention  be'  veen  the 
United  States  and  the  Republic  of  France  concluded  on  the  13th  day 
of  .April,  1803:  that  it  was  not  a  claim  growing  out  of  the  acts  of 
France,  allowed  and  paid,  in  whole  or  in  part,  under  the  provisions 
■•'  'he  treatv  between  the  United  States  and  Spain,  concluded  on  the 
22  i  day  of  Februarv",  1819;  and  that  it  was  not  allowed,  in  whole 
'-.■-  in  part,  under  the  provisions  of  the  treaty  between  the  United 
.■^•ites  i.nd  France,  concluded  on  the  4th  day  of  July,  1831 


CONCLUSIOVS   Or    L.^W 

"The  court  r^nds  as  conclusion  of  law  that  .-^.imue!  HoIIinirsworth  has 
a  '■■•?.'.■-■]  claim  to  indemnity  upon  the  French  Go'.ernment  prior  to  the 
-at:n.-atii-in  of  the  convention  between  'h^  United  St.ar-:s  ,^n.i  the  French 
.^"pi:'-Iic.  concluded  nn  the  30th  day  of  Se^'ember.  l^C*"'.  ar,  I  uas  en- 

"  was  re;in':u;-hed  to 


;  'o  thr>  sum  of  .?5,9<5'150.  and  that  th- 


*he  Government  of  the  Unite'.  S'ates  bv  -a;  1  treat-v   in  -art 


"-•  ierat:or.    of    the    relinquishment 
-••::'  ae-ainst  the  U'-'fed  State*. 

'''ni-'!.;<'ons  of  '.,w   whirh   in   oi 
''"■''  U-"ted  St.ite*  therefor  are  set  : 
••■■^"-!  -he  !>h  an!  24th  of  Nfav  an- 


national    cLa 


cLa:ms    ot 


T  iu>ij-n:-^nt  at:-- 
'he  '■''h  of 


'Vf  :;.i!,i!ity 
'  inion  of  thi<  court 
n-r-mber.  1,886 


I 


iS"<! 


302 


•s 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  Ship  Theresa 

No.  142.  R.  Stewart  Strobel  and  Henry  L.  Bruns,  administrators  of 


Thomas  Stewart. 


FINDINGS  OF  FACT 


This  case  involving  a  claim  un-'er  the  act  of  January  20  1885.  was 
helrd  before  the  Court  of  Claims  in  May.  1886.  The  clam.ant  .as 
reoesenterbrWi  E.  Earle.  Esq..  and  the  defendants  V  Hon. 

Smt  Wilson,  assistant  attorney.    After  hearing  the  p.  .es  t  c. 
proifs  and  arguments,  the  court  from  the  evidence  hnds  iV.  facts  to 

"^riltQ?  Thomas  Stewart,  a  citizen  of  Charleston,  S.  C,  was  the 
owner  of  the  ship  Theresa.     The  Theresa  was  duly  registered  a. 
Ts"     of  the  United  States.  In  the  same  year,  under  the  command  r 
Targes  Brown,  the  master,  she  sailed,  in  ballast,  upon  a  law  ul  voyag 
irm  London  to  Nantes,  where  she  was  to  take  m  a  cargo  of  salt.  Sh 
k,re  a  Tetter  from  Mr.  King,  the  United  States  mm.ster  to  Great 
^r  air    to  P.  F.  Dorbee.  vice-consul  of  the  United  States  at  Nantes. 
Arriving  at  Na.tes  she  was  sei.ed  by  the  French  marme  officers,  and 
TP\  25.  1798.  condemned  by  the  tribunal  of  commerce,  wherel, 
she  became  lost  to  the  owner. 

H  The  Theresa  was  condemned  "upon  the  plea  of  the  u  ant  o  a 
„.uster-roll  or  roie  d'e.uipage."  The  legality  of  -"demnat.on  or  ,hij 
cause,  the  liability  of  France  to  make  rest.tut.on,  and  ^  tr  „  r 
such  iability  to  the  United  States  by  the  o,.erat,on  of  the  re.  .>  o 
Tm.  were  considered  by  the  court  and  ruled  upon  adversely  U>h 
defendants  in  the  case  of  IVilUam  Gray.  Ad»,nustrator,  v.  The  U,uUd 
<^'ati-s  No.  7  of  these  claims. 

Ill    The  value  of  the  Theresa  was  $6,350.     The  clann  has  neve 
been  assigned,  nor  is  it  en,braced  in  the  convention  between  the  L  mte-l 
s"es  L'd  the  French  Republic  concluded  on  the  30th  day  of  A,., 
1803:  nor  to  such  claims  growing  out  of  the  acts  of  F^^nce  as  . 
allowed  and  paid,  in  whole  or  in  part,  under  the  prov.s.ons  of  the    rca  v 
between  the  United  States  and  Spain,  concluded  on  the  22d  (!>>  o 
Februarv    1819;  nor  to  such  claims  as  were  allowed,  m  whole  or  n 
part,  under  the  provisions  of  the  treaty  between  the  Un.ted  States  a,vl 
France  concluded  on  the  4th  day  of  luly.  18.^1 


GUSHING  V.  UNITED  STATES 


303 


IV.  The  claimants  were  duly  appointed  administrators  de  bonis  non 
of  the  estate  of  Thomas  Stewart,  deceased,  by  the  probate  court  of 
Charleston  County,  S.  C. 


C0NCLUSI0\S  OF  LAW 

The  court  finds  as  conclusion  of  law  that  the  said  Thomas  Stewart 
had  a  valid  claim  to  indemnity  upon  the  French  Government  prior  to 
the  ratification  of  the  convention  between  the  United  States  and  the 
French  Republic,  concluded  on  the  30th  day  of  September,  1800,  and 
was  entitled  to  the  following  sum  of  $6,350,  and  that  the  claim  was  re- 
linquished to  France  by  the  Government  of  the  United  States  by  said 
treaty  in  part  consideration  of  the  relinquishment  of  certain  national 
claims  of  France  against  the  United  States. 

The  conclusions  of  law  which  in  our  judgment  affect  the  liability 
of  the  United  States  therefor  are  set  forth  in  the  opinions  of  this  court 
delivered  the  17th  and  24th  of  May  and  the  6th  of  December,  1886. 

The  questions  submitted  by  the  counsel  for  the  defendants  on  the 
present  motion  were  the  following : 

1.  Whether  the  ship's  paper  called  a  role  d'cquipage,  or  muster  roll, 
or  crew  list,  was  properly  exacted  of  the  original  claimants  by  the 
French  admiralty  courts. 

2.  Whether  the  original  claimants  were  excused  from  an  exhaustion 
of  their  remedies  against  the  privateer  owners  in  France. 

3.  The  question  of  the  conclusiveness  against  the  original  claimants 
of  the  admiralty  condemnations  in  France. 

4.  Whether  there  was  war  between  France  and  the  United  States 
at  the  time  these  claims  arose,  and  how  that  fact  aiTected  their  validity. 

5.  Whether  the  French  Government  ever  admitted  the  validity  of 
the  present  claims. 

6.  Whether  this  Government  bargained  away  and  appropriated  the 
present  claims  while  pending  against  France. 

Mr.  Solicitor-General  Jenks,  for  the  defendants,  requested  the  court 
to  find  the  following  conclusions  of  law  : 

1.  That  the  act  of  the  20th  of  January,  1885.  submits  to  this  mutt 
two  questions  for  its  consideration  and  rejKirt;  (a)  The  validity  ot  the 
claims  presented  as  against  France,  {h)  Such  facts  and  conclusions 
of  law  as  may  affect  the  liability  of  the  United  States  therefor  (23 
Stat  L.  283,  S  1    3  )  ' 


30I  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

2  That  the  court,  in  its  report  and  conclusions  of  law,  is  required 
to  Jformt  the  ™les  of  law.  municipal  and  internat.ona ,  and  the 
treaties  of  the  United  States  applicable   to  the  case.     (23   Stat.  L. 

^l'  Vhat  the  acts  of  Congress  of  the  United  States,  unrepealed,  within 
the  linS  of  the  Const.tut.on.  are  conclusively  obhgatory  upon  th>s 

i-niirt  as  law  in  this  case.  ,    ,  •    , 

4    ThatThis  court  is  not  empowered  under  the  law  to  go  beh.nd  an 
act  of  Congress,  unrepealed,  to  inquire  into  the  motives,  reasons,  or 
ts  which'ind^ced  the  passage  of  the  act.  and  pass  upon  the  ver.  y 
or  sufficiency  of  the  facts,  mot.ves.  or  reasons  wh.ch  occasioned      e 
leg.sLive  p^wer  to  pass  it.  or  decide,  because  it  may  differ  wuh 
legislative  J^wer  as  to  the  verity  cf  the  facts  and  the  sufficiency  of  .h 
easts,  th^efore  the  act  regularly  passed,  approved,  unrepealed,  an 
within   he  limits  of  the  Constitution,  is  not  law.    (Osborne  yU^  y,  / 
mZL.  866;  fUner  v.  Blight.  2  Cranch,  390;  U.  S.  v.  WMer.cr, 

'  firin'pr'eJogiive  of  sovereignty  to  judge  and  determine  con- 
clusively whether  war  is  justifiable;  and  when  a  sovereign  so  deter- 
^nines  it  is  conclusive  on  the  whole  world.    (Story  on  the  Const.tut.on, 

^?' France,  at  the  time  of  the  seizure  of  the  property  for  which 
claim  is  made,  was  a  sovereign  nation,  and.  as  such,  had  a  r.^ht  to 
determine  conclusively  as  to  the  United  States  whether  her  .un. 
touM  he  that  of  peace  or  war;  and  if  the  latter,  whether  it  s  ou 
be  general  or  limited ;  and,  in  either  event,  the  principles  of  mternat.ona 
la^f applicable  to  the  status  she  selected  are  those  which  should  control 
in  determining  her  liability  for  the  property  for  which  claim  .s  made 
^nZnl,  Betsy.  2  Cranch.  118;  1  U.  28-39;  3  Wheaton,    1.. 

7  That  the  deliberate  act  of  France  by  wh.ch  she  authon.cd  .he 
seizure  by  force,  the  condemnation,  and  confiscation  of  the  merchant- 
„u-„  an.l  armed  vessels  of  the  United  States,  under  which  the  propertv 
claimed  in  this  case  was  seized,  was  the  actual  assert.on  and  ,-xcrnH- 
of  a  belligerent  power,  and,  as  such,  constituted  a  mar^.rne  war  cm  he. 
part  against  the  United  State.,  (Bas  v.  T.n.o'.  4  Dall.  39,  40.  41. 
Dana's  Wheaton.  §291.')  .         , 

8  That  the  right  to  redress  by  the  United  States  or  K.r  c.t..nt-  tor 
the  seizure  of  the  property  claimed  should  he  determintd  by  th.  prin- 
ciples of  international  law.  as  applicable  to  a  nation  engajred  in  a  nian- 
limo  war.     (TaJbot  v.  Sre^'uu,.  1  Cranch.  28) 


GUSHING  V.  UNITED  STATES 


305 


9.  That  during  the  existence  of  a  maritime  war,  if  a  vessel  and 
cargo  of  a  citizen  be  seized  by  one  of  the  belligerents,  and  be  not  re- 
captured by  one  of  his  own  nation,  his  title  is  gone;  and,  unless  by 
the  treaty  which  terminates  the  war  the  rights  are  reserved,  or  indem- 
nity is  provided  for  or  received  for  the  seizure,  he  has  no  valid  claim 
for  his  loss.  (Vattel's  Laxi.'  of  Nations,  385,  386;  2  Blackstone,  400; 
8  Cranch,  145.) 

10.  The  determination  as  to  whether  war  is  justifiable  and  exists 
belongs,  under  the  United  States  Government,  to  the  political  de- 
partments of  the  Government,  and  their  determination  is  conclusive 
as  law  on  the  judiciary.  (2  Black,  670;  12  Wall.  702-  15  id  560 
561.) 

11.  If  the  political  departments  of  the  Government  enact  such  laws, 
make  such  proclamations,  as  authorize  the  forcible  cajjturc  of  the 
property  of  another  nation  on  the  high  .'■eas,  make  conquests,  and  con- 
demn the  property  captured  as  booty,  it  is  a  political  (icttrniination  of 
the  existence  of  war.  (  !'n;^e  Case?,  2  Black.  670;  12  Wall  702-  15 
iJ.  560.) 

12.  The  act  of  Congress  of  the  9th  of  July,  1798.  and  other  similar 
acts,  at  and  about  the  same  time,  in  pursuance  thereof,  followed  by  the 
capture  and  condemnation  of  the  property  of  the  French,  and  other 
warlike  acts  of  retaliation  by  force,  is  a  conclusive  determination  by 
the  !)oIit;  -.1  departments  of  the  Government  that  war  existed  by  the 
Uiiitec'  i^tates  against  France.  (Bos.  v.  Tin^v,  4  Dall.  42,  43,  44,  46- 
1  Cranch,  28,  31.) 

The  syllabus  in  Bos  v.  Tingy  is  as  follows: 

Under_the  seventh  section  of  the  Act  of  March  2.  1799  (1 
Stat.  L.  716).  France  was  to  be  deemed  an  enemy  of  the  L'nited 
'States  in  .March,  179^,  and  a  French  privateer  having  captured 
an  American  vessel,  a  public  armed  vessel  of  the  United  States 
WPS  entitled  to  salvage  or  recapture. 

The  opinion  declares  as  follows  : 

The  decision  of  this  question  must  depend  upon  another,  which 
i>  whether,  at  the  time  of  passing  the  act  of  Congress  of  the  2d 
of  March.  1799.  there  subsisted  a  state  of  war  between  the  two 
nations.  It  may,  I  believe,  be  .safely  laid  down  that  everv  con- 
tetitioTi  by  force  between  two  nations,  in  external  matters.  un<Ier 
the  authority  of  their  respective  Governments,  is  not  only  war.  but 
ptiMic  unr.    If  it  he  declared  in  fnrtn.  it  i<  railed  solemn,  and  is  of 


\m 


306 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  perfect  kind;  because  one  whole  nation  is  at  war  with  another 
wJo^  naton.  and  all  the  members  of  the  "atjon  declaring  war 
Tre  authorized  to  commit  hostilities  against  all  the  members  o^ 
the  other  in  every  place  and  under  every  circumstance.  !«  su^h 
a  w^r  Si  the  members  act  under  a  general  authority,  and  all  the 
riehts  and  consequences  attach  to  their  condition.  ^„„fi„^,| 

But  hostilities  may  subsist  between  two  nations,  more  confined 
.n  it?  nature  and  ex'tent,  being  limited  as  to  Pl^-^.  P-/^^^  ^^ 
things  and  this  is  more  properly  termed  imperfect  war.  because 
iot  Semn,  and  because  Lsc  who  are  authorized  to;— ^Mo- 
tilities act  under  special  authority  and  can  go  no  farther  than  to 
the  extSit  of  their  commission.  Still,  however,  it  is  public  war 
because  k  is  an  external  contention  by  force  between  some  of  the 
Sers  of  the  two  nations,  authorized  by  the  X'^^^j^d^^: 
It  is  a  war  between  the  two  nations,  though  all  the  members  arc 
not  autl^^rized  to  commit  hostilities  such  as  in  a  solemn  war  where 
the  Government  restrain  the  general  power. 

\ow  if  this  be  the  true  definition  of  war,  let  us  see  what  v^ a, 
the  ^nation  of  the  United  States  in  relation  to  France.  In  March 
1%?  Congress  had  raised  an  army,  stopped  all  intercourse  w  h 
See  difsolved  our  treaty,  built  and  equipped  sh'ps  of  war  and 
commissioned  private  armed  ships;  enjoining  the  former  and 
aSrizing  the  latter  to  defend  themselves  against  the  armed  ship, 
of  France ;  to  attack  them  on  the  high  seas,  to  subdue  and  take 
Siem  as  prize,  and  to  recapture  armed  vessels  found  in  the.r  pos- 

'^mat   then,  is  the  evidence  of  legislative  will?    In  fact  and  in 
law  we  are  a    war.    An  American  vessel  fighting  with  a  French 
veTseUo  subdue  and  make  her  prize  is  fighting  with  an  enemy,  a  - 
curately  and  technically  speaking :  and  if  this  be  not  sufficient  evi- 
dence of  the  legislative  mind,  it  is  explained  in  the  same  law-    The 
sfxth  and  the  ninth  sections  of  the  act  speak  of  prizes,  which  can 
only  be  of  property  taken  at  sea  from  an  enemy,  jure  belh:  and 
the  ninth  section  speaks  of  prizes  taken  from  an  enemy,  in  ^o 
many  words,  alludiiig  to  prizes  xyl.ich  had  been  previously  taken 
But  no  pri.e  could  have  been  then  taken  except  from,  Fran.  =  . 
prizes  taken  from  France  were,  therefore,  taken  from  the  eneni>v 
This   then,  is  a  legislative  interpretation  of  the  word  enemy :  a n-i 
if  thij  enemy  as  to  prizes,  surely  they  preserve  the  san^  character 
as  to  recaptures.  Besides,  it  may  be  fairiy  asked.  Why  shoul.l  he 
rate  of  salvage  be  different  in  such  a  war  as  the  present  troni  tht 
salvage  in  a  war  more  solemn  and  general.    And  it  "V'^t  he  ••«^^"': 
lected  that  the  occasion  of  making  the  law  of  March,  179Q.  vvn> 
not  only  to  raise  the  salvage,  but  to  apportion  it  to  the  hazard  m 
which  the  property  retaken  was  placed,  a  circumstance  for  which 
the  former  salvage  law  had  not  provided. 


GUSHING  V.  UNITED  STATES 


307 


The  two  laws,  on  the  whole,  can  not  be  rendered  consistent  un- 

&r  ^'.h°"'*  •=°"^A-^'"'^  '°  ^''"^  ^^  "°'  ^°  ^'^^  ^"d  know,  that Tn 
fact  in  the  view  of  Congress,  and  to  every  intent  and  puri^se  the 
possesion  by  a  French  armed  vessel  of 'an  AmericanTe^e  wps 
the  possession  of  an  enemy,  and,  therefore,  in  my  opinion  ,  » 
decree  of  the  Circuit  Court  ought  to  be  affirmed. 

But  by  the  acts  of  Congress  an  American  vessel  is  authorized: 
1st.  To  resist  the  search  of  a  French  public  vessel  •  2d  To  cantnre 

i:LrTTo  ^'°"'?  ''''"'''!!'  '""'^  to'^comS.'suJmfs^irto" 
ves  ef'and  4?h  T?  '.^^  ^'"';"^""  "^^^^^  ^""^  by  a  French 
vessel,  and  4th  To  capture  any  French  armed  vessel  wherever 
found  on  the  high  seas.  wncrcver 

An  .mperfect  war,  or  a  war  as  to  certain  objects  and  to  a  certain 
extent,  exists  between  the  two  nations;  and  this  modified  war- 
fare IS  authorized  by  the  constitutional  authoritv  ofTur  couX 

hi,.  °"  v"'  P'"^'  ""  ^"'  "'^y  ''■'  P'^'''^  *"  hostile  operat  onT 
It  IS  a  maritime  war  a  war  at  sea  as  to  certain  purposes  The 
national  armed  vessels  of  France  attack  and  nnt„rl%^7  ♦•  i 
armed  vessels  of  the  United  State:":;":,  t^^'e  n^Zl'^tr^T^^ 
sels  are  expressly  authorized  and  directed  to  attack  subdue  Tnd 
take  the  national  armed  vessels  of  France,  and  also  to  recaoture 
American  vessels.  recapture 

Now,  is  that  the  truth  or  is  it  false?  Is  that  law  to  this  court  or  is 
It  not  law;  and  was  not  that  a  capture  exactly  like  this  of  the  Sailyf 
But  ,f  It  were  a  war  and  the  laws  of  war  apply,  there  was  no  title, 
no  nght  of  recovery  whatever  left  in  the  owner  of  the  Sally  twenty- 
four  hours  after  she  was  taken  under  general  international  law  Under 
our  statute  there  was  none  at  all.  unless  on  recapture.  The  same  vie^ 
IS  expressed  in  another  form  by  each  and  every  justice  in  that  cause. 
Now.  If  you  wil  take  that  case  and  make  any  possible  distinction  be- 
tween the  case  of  Bos  V.  Tingy  and  this  case  at  bar.  it  is  more  than  I  am 
capable  of  making  on  principle,  because  you  will  have  to  find  it  was 
captured  just  as  the  Sally  was. 

13.  The  United  States  having  elected  to  redress  the  wrongs  France 
had  done  her  and  her  citizens  by  retaliation-a  warlike  measure-and 
having  actual  y  obtained  redress  in  that  way.  can  not  afterwards,  in 
he  ab.sence  of  treaty  stipulations,  deny  the  justice  of  the  judgment  in 
th>s  last  and  highest  tribunal  of  nations,  nor  claim  another  remedv  and 
payment  for  the  same  wrong.  (Treaty  of  1800.  Rev.  Stat.,  §'225- 
Vattel,  437,  438.)  ^         ' 


>      vr,' 


308  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

14.  The  claim  in  this  case,  if  any  existed,  having  then  been  re- 
dressed by  the  war  measures  of  retaliation  as  against  France,  is  barred 
by  the  redress  received  in  the  judgment  of  that  court  of  last  resort. 

15.  When  a  sovereign  appeals  to  the  judgment  of  the  tribunal  of 
war,  that  appeal  is  final  and  conclusive  as  to  the  parties  in  the  con- 
troversy and  all  their  citizens  as  to  the  subject-matter  of  the  dispute, 
and  is  conclusively  presumed  to  be  fully  executed  in  the  treaty  by 
which  the  appeal  is  terminated. 

16.  That  by  the  treaty  of  1800  as  ratified,  no  rig..ts  of  the  citizen 
were  reserved,  nor  any  indemnity  provided  for  or  received;  but  both 
the  United  States  and  France  expressly  renounced  their  respective  pre- 
tensions to  indemnity  for  past  alleged  wrongs  committed  by  cither. 
(Rev.  Stat.,  §  232.)  . 

17.  That  the  very  cause  of  the  warlike  measures  determined  upon 
by  the  United  States  as  against  France,  which  was  terminated  by  the 
treaty  of  1800,  was  the  capture,  condemnation,  and  destruction  by  the 
French  of  American  vessels  and  cargoes,  in  which  was  included  the 
property  claimed  by  the  petitioner  in  this  case.  (Rawlc  on  the  Con- 
stitution, 109.) 

18.  That  under  the  law  and  facts  of  this  case,  the  claimant  had  no 
right,  at,  immediately  before,  or  after  the  treaty  of  1800  to  indemnity 
for  his  claim  against  France. 

19.  A  nation,  by  the  compact  of  Government,  d  •  njt  insu.o  rgaiiiJt 
nor  agree  to  indemnify  its  citizens  for  all  wrongs  done  them,  either 
individual  or  national.    (Vattel,  402,  403.) 

20.  The  fact  that  the  United  States  did  not  require  an  indemnity 
of  France  for  the  spoliations  committed  on  the  commerce  of  her  citi- 
zens does  not  impose  on  the  United  States  the  legal  duty  of  paying 
all  or  any  claims  for  which  she  as  a  sovereign  did  not  see  fit  to  demand 

indemnity. 

21.  That  the  judgment  of  the  political  departments  of  the  Govern- 
ment in  making  and  ratifying  the  treaty  of  1800  being  a  political  act, 
and  within  the  jurisdiction  of  the  political  departments,  is,  as  law. 
conclusive  on  this  court :  and  this  court  is  not  empowered  to  rcojicn 
the  justice  or  expedience  of  the  treaty,  nor  to  rejudge  it  on  any  grounds. 
(iniliams  v.  Suffolk  Insurance  Co..  13  Pet.  420;  Phillips  v.  Payne. 
92  r.  S,  132.    The  .■Uniahlc  Isabella.  6  Wheat.  72.) 

22.  That  by  the  act  of  Congress  of  the  7th  of  July,  1798  (1  Stat.  T... 
p.  578).  the  treaty  of  1778  between  the  United  States  and  France  was 


GUSHING  V.  UNITFD  STATES 


309 


annulled,  and  France,  after  »he  passage  of  the  act,  had  no  lawful  claim 
against  the  United  States  for  or  on  account  of  that  treaty,  or  for  or  on 
account  of  any  breach  or  infringement  thereof.  ( 1  Stat.  L.  538  •  Rawie 
on  the  Constitution,  109;  Chirac  v.  Cliirac.  2  Wheat.  272;  The  Charm- 
itn:  Betsy,  2  Cranch,  118.) 

23.  That  under  the  law  and  treaties  in  this  case  no  claim  of  France 
against  the  United  States  for  any  breach  or  infraction  of  che  treaty  of 
1778  was  paid  by  set-off,  defalcation,  or  compromise  of  any  rights  if 
such  existed,  which  this  claimant  had  against  France  for  spoliation. 

24.  1  hat  at  the  time  negotiations  for  the  treaty  of  1800  were  had 
between  the  United  States  and  France,  no  treaty  existed  between  them, 
nor  any  treaty  obligation. 

25.  The  United  States,  by  the  treaty  of  1800,  did  not  receive  re- 
serve, nor  stipulate  for  any  additional  redress  for  the  alleged  wrong 
claimed  in  the  case  of  the  petitioner;  but,  upon  its  ratification  ex- 
pressly renounced  its  pretensions  of  claim  therefor.  (Rev  Stat  43d 
Cong.,  Post  Roads  and  Treaties,  p.  232.) 

26  That  the  claimant  in  this  case  has  no  legal  claim  or  right  against 
the  United  States. 


Mr.  B.  Wilson,  for  the  defendants,  proposed  the  following  additional 
requests : 

1.  That  international  law  concerning  neutral  commerce  required 
as  proofs  of  the  neutrality  of  .-.  vessel,  the  same  proofs  which  are  men- 
tioned in  the  treaty  of  1778,  which  a-e.  1st,  i!ic  certificate  of  the  several 
particulars  of  the  cargo  (Ordinance  of  1681  ;  Chittv's  Com  I  aw  487- 
r^eMartens'  Armateurs,  §  21);  2<1.  a  passport  (Chitty's  Com  'Law' 
48/  ) ;  Ordmance  of  1681  ;  3  Phillimore  Int.  Law.  734.  cases  there  cited)  ' 
3d,  the  certificate  of  the  ownership  of  the  vessel  (regulation  of  the 
Hanseatic  League,  1369)  ;  4th,  the  report  or  proc^s-vcrbal  of  the  cap- 
tain of  what  was  done  during  the  voyage  (Boucher  Droits  Maritimes 
§,§  368.  498;  Emerigon.  sec.  torn.  1.  fol.  276)  ;  5th.  the  carrving  of  the 
fiacr  i>f  the  country  to  which  the  vessel  helon-s  (1  Rob.  .Adm.  Rep.  1. 
1''.  161)  ;  6th,  the  role  d'cipupagc  ( Refflements  of  !704,  1774  1778- 
(-  Intty's  Com.  Law.  487 ;  \^alin,  Traite  des  Prises,  etc.). 

2.  That  the  treaty  of  1778,  so  far  as  the  proofs  of  neutralitv  or  in- 
nocence were  concerned,  was  therefore  declaratory  of  international  law 
already  existing  and  to  be  interpreted  accordingly. 

3.  That  the  treaty  required  a  role  d' equipage,  or  list  of  the  crevv 


khm 


310  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

giving  the  names  and  places  of  birth  of  the  crew  and  of  all  who  should 
embark  on  board,  duly  authenticated  by  the  officers  of  the  Government. 

4.  That  the  object  of  such  a  list,  not  being  stated  in  the  treaty,  is  to 
be  sought  for  in  international  law,  and  is  there  declared  to  be  to 
prove  the  neutrality  of  the  crew.  (DeMartens'  Armateurs,  §  21 ;  Chit- 
ty's  Com.  Law,  487.) 

5.  That  the  Government  of  the  United  States  having  failed  -.nd 
refused  to  live  up  to  the  offensive  and  defensive  alliance  (treaty  of 
1778)  existing  between  it  and  France,  and  proclaimed  itself  neutral, 
it  was  competent  for  the  French  Government  to  recognize  us  as  neu- 
trals, and  thereafter  legal  for  the  French  courts  to  treat  our  vessels  as 
those  of  neutrals  were  to  be  treated  under  international  law.  and  no 
longer  as  those  of  allies,  disregarding  anything  in  the  treaties  arising 
out  of  the  favored  position  of  allies. 

6.  That  when  the  vessel  of  a  belligerent  captured  any  suspected  ves- 
sel, the  question  of  prize  belongs  exclusively  to  the  jurisdiction  of  tlic 
courts  of  the  captor's  country.  (0  Cranch,  359;  1  Wheat.  2.^8:  2 
Galli-.on.  29.) 

7.  That  where  there  is  probable  cause  of  capture,  i.  e..  ci mini- 
stances  to  warrant  a  reasonable  suspicion  of  illegal  conduct,  the  cip- 
tfirs  .-re  justified  and  exonerated  from  all  losses  and  damages  mis- 
tained  by  reason  of  the  capture,  and  the  burden  of  proof  is  ou  tlic 
captured.  {The  Roicr,  2  Gallison,  240;  Mdissonnaire  v.  Kealini^.  2 
Gallison.  3.V. ;  Thr  (lcori:c.  1  Mason.  24 ;  Shattuck  v.  Maley.  1  Wash, 
r.  C  248.) 

8.  In  the  prize  court  the  onus  prohaiidi  rests  on  the  captured.  (The 
Amwhie  Isabella.  6  Wheat.  ,'7 :  3  Phillimore  Int.  I-aw.  72^ :  8  rranrli, 

9.  That  as  the  neutrality  or  innocence  of  the  property  of  tlir  rln-ii- 
ant  was  not  proven  lieyond  a  reasonable  doubt,  it  was  rightly  con- 
demned.    (!d.) 

10.  That  municipal  law<;  to  enforce  a  nation's  rights  under  interna- 
tional law  are  facts  of  the  relations  of  two  nations.  an<1  (irts  \v'- 
formed  hv  a  nation,  of  which  the  pri;;e  court  takes  notice  in  order  \v 
enforce  international  law  as  applicable  thereto;  that  this  was  fl<inc 
in  the  cases  of  the  pre'-ciit  claimants,  and  the  condemn.ation  of  this 
property  was  not  renderid  ilk  tjal  liy  such  procedure, 

11.  That  claimant^  had  no  valid  claim  against  France,  for  tlu-  re;\-"ii. 
among  others,  that  the;    did  not  ixhaii'^t  tli       remedies  in  tlic  I"n  luii 


GUSHING  V.  UNITED  STATES 


311 


courts  by  appeal  or  action  upon  the  bond  and  against  the  property  of 
the  captor. 

12.  That  not  to  --pea!  froi.i  the  decision  of  the  inferior  court  con- 
demning th<-  •;:niiar:T-  \esjel  \v2s  an  acknowledgment  of  the  justice 
of  the  sentc    ;i  an.i  ■:oncii,M'.  .      (Lee  on  Captuics,  220.) 

13.  It  is  u  vf  =.ally  admit  1  that  the  decree  of  a  prize  court  is  con- 
clusive again-'.  .Jl  ;lie  uorl.,  as  to  all  matters  decided  and  within  its 
jurisdiction.  ( 17  Quo  p.  oO,  authorities  there  cited ;  note.  Gushing  v. 
Laird.    See  also  Article  5,  French  and  United  States  Treaty,  1803.) 

14.  That  it  is  contrary  to  public  policy  to  ask  a  nation  to  reprobate 
the  long-continued  conduct  of  its  political  department.  (Ellsworth, 
Ch.  J.,  quoted  below :  also  Vattel.  bk.  2,  ch.  7,  §  85.) 

15.  That  the  capture  of  claimant's  property  was  an  act  of  war,  and 
as  such  gave  rise  to  no  valid  claim  for  indemnity.  ( X'attel,  bk.  3. 
ch.  13.  §  VX) ;  1  Rob.  .Xdm.  Rep.  581  :  3  Pallas.  226,  227.  etc. )      '  ' 

16.  That  to  render  a  war  lawful,  and  legalize  the  damage  done  in 
the  coiir.'ie  of  it,  no  declaration  is  necessary,  r  Bynkerslio«-k  on  the 
Law  of  War.  cti.  2;  Grotius.  li;,.  3.  ch,  3,  §  6,  notes  1  and  2.) 

17.  Thai  when  a  state  authorizes  reprisals  for  national  injury  to  be 
made  by  an  indiscriminate  seizure  of  the  iiroperty  of  the  subjects  of 
another,  this  order  is  equivalent  to  a  declaration  of  war.  (Dana's 
Wheaton,  §  291.) 

18.  That  in  recognizing  that  France  was  at  war  against  us  we  recog- 
nized that  the  laws  of  war  were  applicable  to  her  proceedings,  and 
were  estopped  to  claim  that  thev  were  piratical.  ( 1  Stat  L.,  act  of 
July  0,  1798;  Bas  v.  Tin}:y.  4  Dallas,  .18:  1  Cranch.  1.) 

19.  That  the  political  departments  of  the  rioverninent  having  recog- 
nized that  France  was  at  war  in  respect  of  the  seizures  of  our  vessels, 
the  courts  can  not  consider  as  piratical  those  acts  of  hostility  which 
were  so  directed  against  our  vessels,  (  U.  .9.  v.  Palmer  6  Wheaton 
634.) 

20.  That  the  confiscation  of  cnemy'^  vessels  and  cargoes  is  lawful 
under  fh  ■  law  of  nations  and  rests  upon  the  soimd  discretion  of  the 
M.itional  sovereign.     (8  Cranch,  145,) 

21.  Th.1t  the  property  of  the  subjects  of  one  nation  may  Ik-  con- 
tiscitcd  by  another,  after  a  failure  to  satisfv  for  an  injury  and  with- 
"iit  a  war,  (\attel.  bk,  2,  ch,  18.  §  .U2:  Panas  Wheaton,  §  290; 
KHiIht,  Droits  dcs  Gens.  §  2,U,  note  C;  HMrlamaqui,  Droits  ,ic^  Gens 
I>t.  4,  ch.  3,  §42.) 


1 1 


31.: 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


Mr.  lyUliam  h.  Earlc,  having  participated  in  the  original  argument 
fur  claimants  and  tiled  printed  briefs,  submitted  tlie  following  proposi- 
tions : 

I.  That  certain  claims  of  American  citizens  have  been  rele»<ed  to 
I'^ance.  This  we  established  by  the  treaty  of  1800,  and  by  the  cor- 
respondence and  negotiations  relative  thereto,  as  officially  published 
in  Kx.  Doc.  102,  1st  sess.,  19th  Cong. 

II.  That  these  claims  for  indemnity  were  valid  against  Fiance,  and 
that  her  liability  for  them  was  admitted  by  France.  This  we  have 
established  by  well  settled  principles  of  the  law  of  nations  and  tlio 
treaties  between  the  two  nations,  and  the  evidence  in  Ex.  Doc.  102. 

III.  That  the  United  States  released  to  France  these  claims  of 
American  citizens  "for  a  valuable  consideration  for  the  public  benefit.' 
ignoring  the  rights  of  individual  citizens  who  had  suffered  by  the 
spoliations.  This  we  have  established  by  the  treaty  of  1800,  and  the 
correspondence  and  negotiations  as  to  it,  as  published  in  Ex.  Doc.  lOJ, 
anil  the  proceedings  oi'  the  two  nations  as  to  its  ratification. 

1\  .  That  the  release  by  France,  of  her  claims  for  indemnity,  for 
the  failure  to  keep  the  treaties  of  1778,  and  for  making  the  Jay  treaty, 
in  1794,  was  to  the  United  States  a  "valuable  consideration,"  for  their 
release  to  France  of  these  claims  of  theii  citizens  against  her.  Tlii^ 
we  have  establishi  hy  the  official  correspondence  published  in  I  \ 
Doc.  102.  and  the  treaties  of  1778,  and  well  recognized  principle-  ■  f 
the  law  of  nations. 

V.  That  whilst  prize  courts  may  hold  themselves  bound  to  .idmini-trr 
the  local  laws  and  regulations  of  their  own  country,  .ind  whilst  their 
own  decrees  arc  final  as  to  property  in  thr  r,-.?,  yet  their  jiidi^iotu  i- 
thc  act  of  their  government,  and  a  valid  liplomatic  claim  rests  iip' n  't. 
if  the  condemnation  is  in  defoliation  of  the  law  of  n.ations  or  impair-  :i 
treaty.  This  we  have  e-^tabtishcd  hv  decisions  of  our  Suprem-"  ("nn-t 
and  tiv  the  settled  law  of  nations. 

\T.  That  in  the  tre.afv  of  1800,  the  governments  of  i,  twi'  i"  v.-\- 
tries  came  together  in  an  adinstment  of  their  difTerences  or  "ni'-i'i- 
derstanding,"  as  on  the  hasi^;  of  the  continneil  existcmr  '? 
the  treaties  of  1778.  and  agreed  "to  negotiate  further"  .i<  i^ 
thn^e  treaties  and  the  mutual  claims  for  indenuiity  for  their  tnrtnal 
violations  of  them;  and  suti«eqnently.  in  its  ratification,  the  UnitH 
States  scctired  .i  trlea'^e  from  the  future  oWigation«  of  the  trrnt'c^  .-f 
1778  and  their  liabilities  for  having  failed  to  observe  them,  in  roti- 


GUSHING  V.  UXlTIiD  STATES 


313 


siderauon  of  a  release  to  France  of  tui  -  claims  for  reclamation  of 
American  citizens.  The  bargain  was  not  only  a  set-off  of  the  mutual 
claims  to  indemnity,  but  a  release  to  the  United  States  from  tliese 
treaties  for  the  future. 

\II.  That  war  leaves  the  right  to  captured  property  with  the  posses- 
sor at  the  time  of  the  signing  of  the  treaty ;  but  in'  view  of  the  fact 
that  there  had  been  no  war,  this  treaty  mutually  restored  all  captures 
on  hand. 

Mil.  That  the  question  arises  as  to  what  cases  come  within  the  class 
of  those  released  to  France,  in  the  bargain  effected  bv  the  rescission  of 
the  second  article,  and  were  therefore  valid  claims  against  France, 
and  not  excluded  by  the  terms  of  the  exceptions  relating  to  the  three 
other  treaties,  as  declared  in  the  terms  of  the  jurisdictional  act,  refer- 
ring these  claims  to  this  court.  And  the  answer  to  this  is.  all  "for 
illegal  captures,  detentions,  seizures,  condemnations,  an;I  confiscations 
made  prior  to  July  31,  1801,-  which  do  not  come  within  one  of  the 
three  exceptions  of  the  jurisdictional  act,  and  which  were  made  in 
violation  of  the  treaties  between  France  and  the  United  States,  and 
in  violation  of  the  law  of  nations.  And  this  answer  must  be  .ippli'ed  to 
the  state  of  facts  established  by  the  evidence  in  each  oarcicular  case. 

IX.  That  most  of  these  condemnations  were  based  on  the  »-nt  of  a 
role  d'^quiMge,  which  was  -equircd  by  the  ancient  maritimt  ,nila- 
tions^of  France,  and  this  p  gulation  was  reenacted  after  the  treaties 
of  1778,  The  civil  tribunals  on  appeal  from  the  tribunals  of  com- 
merce, held  that  this  regulation  was  binding  on  the  courts  -f  France 
without  regard  either  to  the  treaties  or  to  the  laws  of  xml  s.  These 
ooiidminations,  we  maintain,  were  not  only  in  vinhtion  of  the  trc.ity 
t'ut  of  the  law  of  nations. 

X.  Th.it  condenmatinns  bec.-iuso  the  captain  or  mate  w.is  fore:gn- 
l>orn.  though  a  naturalised  American  citi/en.  were  in  viol.ition  of  the 
l.iw  nf  n.ntions. 

XI.  Th.nt  condemnations  for  ninning  ,'i  hl.H-k.i.Je  were  unlawful,  for 
It  ;-  a  \^clI-estahIivhed  historical  fact  that  t!;o  French  h.i.l  not  a  Wnck- 
ad-  in  the  West  Indies,  and  the  verv  .-roclam.itinns  of  blockade  them- 
<c!vrs,  <hnw  that  they  wore  brutnnt  fuhnci  and  ...ere  pretexts  for 
makin?  captures. 

XII.  That  the  few  remaining  capture*  wore  on  the  cmund  of  carry- 
mir  Rriti^h  productions  nr  trading  to  P.riti-h  ports.  N.th  whereof  are 
1"  'isput.ihly  in  violation  of  the  treatv  and  are  in  contravention  of  the 
inv  of  n.ition». 


Il  - 


JUDGMENTS  OF  THE  COURT  O 


\1MS 


314 

XI 11  An  illegal  condemnation  by  a  prize  court  is  the  act  of  the 
guvtrnment  of  that  court,  and  the  valid  basis  of  a  diplomatic  claim. 

Mr  IVUliam  Gray.  Mr.  George  S.  Boutwdl,  Mr.  Edward  Lafuier, 
Mr  La'.rence  Leuns.  Jr..  Mr.  Samuel  Shellabarger.  Mr.  Jere  H  lison 
and  Mr.  Leonard  Myers  were  also  heard  in  support  of  the  position 
taken  by  the  claimants. 

Argument  of  Mr.  B.  Wilson  for  the  defendants: 

The  third  section  of  the  jurisdictional  act  January  20,  1885,  pro- 
vides that  this  court  "shall  decide  upon  the  validity  of  said  claims 
according  to  the  rules  of  law,  municipal  and  international,  and  the 
treaties  of  the  United  States  applicable  to  the  same,  and  shall  report 
all  such  conclusions  of  fact  and  law  as  in  their  judgment  may  aflfect 
the  liability  of  the  United  States  therefor." 

l?y  the  sixth  section  it  is  provided  that  such  finding  and  report  >l!a'„ 

be  onlv  advisory. 

Congress  wants  no  information  from  the  court,  but  positive  lact 
and  positive  law,  an.l  when  the  cun  finds  such  a  thing  is  the  fact 
and  ^uch  a  principle  is  the  established  law.  and  so  report  to  Longre-. 
that  Ixxly  proposes  to  take  action  according  to  its  own  wisdom  wn 
the  report  .o  made.     For  example,  the  Supreme  Court,  interpretni.c 
the  acts  of  the  political  department,  have  settled  the  question  a^  t.> 
war  in  all  its  bearings,  and  the  law  to  be  that  it  was  such  a  wnr  a. 
authorized  captures  and  condemnations  as  prize  and  made  one  u'ov- 
ernment  the  enemv  of  the  other.     (4  Dallas.  38:  1  Cranch.  pp.  1-^,  31, 
32   39   40,  41.)     What  more  can  be  done  but  to  reptirt  accor-hnijl}- 
Again.'  the  Supreme  Court  ( IVare.  Administrator,  v.  Hylton.  el  *' 
3  Dallas.  258,  17%)  have  settled  the  'aw  of  n.itions  to  be  that  treaties 
between  sovereign  powers  when  broken  by  one  arc  voidable  ,it  tie 
option  of  the  other:  and  in  Chirac  v.  Chirac,  the  same  court.  Mar- 
shall, Ch.  T.,  delivering  the  opinion,  held  that  in   \7^  no  trcatv  v,.- 
in  existence  lietween   France  and  the .  United   States.      (2  Wlica;.,n. 

272.)  ,   .     .     , 

What  can  be  done  bv  this  court  but  report  that  such  is  the  law  --, 
that  Mibject '  In  the  s.ime  manner,  by  reference  to  standard  author- 
ities, shnuld  all  other  legal  principles  be  ascertained  and  reported,  av 
for  example,  the  conclusiveness  of  prize  adjudications  (C>i.';lwi:  v 
Laird.    107    V.    S.    fi^).    and    ivrnliditv    in    /(K>'    of    claim*,    l"'"' 


GUSHING  V,  UNITED  STATES 


315 


either  upon  such  adjudications  (Lord  Eldon  in  2  Swanston,  576)  or 
upon  acts  of  war,  and  the  necessity  of  exhausting  remedies  in  the 
courts  in  such  cases  (other  than  prize  cases,  however),  where  valid 
Claims  way  exist.  All  these  things  are  settled  la-u;  and  operate  favor- 
ably to  the  United  States  in  this  matter.  Special  exemptions  from  the 
general  law  must  be  specially  pleaded  and  proven.  For  example,  if 
some  of  the  captured  were  prevented  from  -xhausting  their  remedies, 
and  it  appears  that  all  were  not,  it  is  incumbent  on  each  claimant  to 
show  that  he  was  so  prevented.  The  burden  must  be  on  some  one  to 
,-how  it,  and  he  who  asserts  a  fact  imist  prove  it,  and  not  he  who 
denies  it  prove  the  negative.  .Most,  practically  all  these  claims  would 
be  invalid  for  want  of  exhaustion  of  remedies,  if  not  already  invalid 
because  prize  judgments  are  conclusive  and  final. 

The  facts  to  be  reported  are,  of  course,  the  when  and  how,  where 
and  why,  seizures  and  captures  were  made  b^  the  French.  These 
being  found,  then  the  question  of  law  arises,  were  they  illegally  made? 
Were  they  made  in  pursuance  of  international  law?  It  is  not  pre- 
tended that  they  were  made  without  authority  of  French  law.  P.ut  it 
is  pretended  that  France  had  no  right  under  the  law  of  nations  to 
pass  such  laws.  If  this  was  pretended  of  the  laws  of  Congress  in 
1"98  authorizing  condemnation  of  French  property  we  should  call 
the  pretense  an  absurdity.  However,  were  the  laws  illegal  according 
to  international  law?  Upon  what  alleged  right  of  France  were  they 
based?  Evidently  on  the  right,  which  every  nation  has.  of  using  force 
to  retaliate  upon  another  nation  which  she  believes  to  have  deprived 
her  of  her  rights  secured  by  treaty,  and  to  have  wronged  her  other- 
wise. Was  this  using  of  force  by  France  for  such  a  purpose  legal 
or  illegal?  Vattel  and  Grotias.  and  other  writers  on  the  law  of 
nations,  tell  us  that  such  laws  are  proper,  and  that  it  is  for  everv 
sovereign  nation  to  decide  for  itself  v.hcn  they  ,..ighi  to  be  passed, 
not  because  might  is  right,  but  because  there  is  nobod\-  else  to  decide 
tlie  (juestion.  If  the  law  is  right  and  proper,  was  it  legal  to  enfor.-e 
It  in  the  courts?  To  ask  such  a  question  is  to  answer  it.  The  right 
of  a  sovereign  to  enact  srch  laws  is  as  well  settled  as  any  interna- 
tional question  can  be. 

When  the  commander  of  a  French  vessel  captured  an  American 
vessel  there  was  only  one  legal  way  to  detemnne  whether  he  had 
leijally  captured  her,  and  whether  she  was  la:,'fiil  prize  under  the 
treaties  and  the  law  of 


)i  nations,  and  that  was  hv  trial  in  a 


prize  court 


i 


.-) 


316  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  the  captor's  country ;  so  says  the  law  of  nations.  That  trial  and 
the  findir.g  were  not  only  legal,  but  the  only  legal  ones  possible.  Any 
other  trial  and  a  finding,  in  any  other  kind  of  court,  in  any  other  coun- 
try, would  have  been  illegal,  but  not  this.  This  is  another  conclusion  of 
the'  law  of  nations  which  aflfects  the  liability  of  the  Government  of 
the  United  States  when  subrogated  to  the  liability  of  France.  Prize 
judgments  are  not  disregarded  by  international  commissions  created  by 
the  consent  of  nations,  because  they  are,  properly  speaking,  illegal, 
but  for  reasons  of  diplomacy  and  compromise.  For  example,  the 
Alabama  Commissicr,  as  one  of  the  opposite  counsel  stated,  disre- 
garded decisions  of  the  Supreme  Court  in  prize  cases.  The  report? 
of  those  Commissioners  show  that  the  correctness  and  legality  of  the 
court's  decisions  were  not  disputed,  but  under  the  treaty  they  were  to 
decide  according  to  abstract  justice  rather  than  according  to  law.  Law 
rtorks  absolute  justice  in  most  cases,  but  fails  to  do  so  in  the  excep- 
tional cases.  Xations  can  u-aive  their  right  to  the  enforcement  of  law 
in  such  e.xceptional  cases. 

This  was  proposed  by  American  envoys  for  France  to  do  in  1800,  Ir.n 
she  refused  because  we  did  not  agree  to  her  propositions.  In  tlie 
Alabama  cases  the  waiver  was  agreed  upon.  That  consent  conl  i 
rii^htly  have  been  withheld,  and  the  law  insisted  on,  but  policy  indium  d 
the  contrary.    To  quote  from  the  argument  used  in  those  cases : 

It  was  further  maintained  on  behalf  of  the  claimants  that,  umler 
the  treaty  of  Washington,  the  Commissioners  were  not  consti- 
tuted a  tribunal  which  in  prize  cases  had  a  merely  appellate  iiiri-- 
diction  to  r<.'vic\v  the  judgments  of  the  pnze  court  of  last  rt-Mirt: 
that  the  Commissioners  had,  by  the  terms  of  the  treaty,  greater 
and  more  absolute  power  to  do  j.istice  than  was  or  could  he  cv- 
crcised  bv  the  prize  courts  of  the  I'nited  States:  and  that  even  if 
the  Commissioners  should  be  <,atisficd  that  upon  the  record  pre- 
senteil  to  the  prize  court,  the  facts  disclosed  n'lnraiited  roniUin- 
nation  under  the  /nrr  of  itatiofs,  yet  if  they  found,  under  all  the 
circumstances  of  the  case,  that  in  justice  and  equity  the  claimants 
were  entitled  to  indemnity,  it  was  their  s<ilcnin  dntv  to  award  it. 
even  though  it  were  in  the  face  of  the  technical  rule  of  the  pn/e 
courts. 

As  stated,  nations  may  waive  their  right  under  international  law. 
and  .each  results  mutually  satisfactory  by  diplomacy,  but  diplomacv  is 
not  international  law. 

This  can  only  be  done  by  consent  of  sovereign  nations,  and  money 


CUSHIXC,  V.  UXITHD  STATFS 


317 


paid  upon  claims  thus  admitted  or  created,  is  a  gift  or  donation  for 
purely  political  and  diplomatic  reasons  (2  Swanston,  576).  France 
did  not  vaive  her  legal  right  as  to  the  conclusiveness  of  the  judg- 
ments of  her  prize  courts,  nor  to  the  necessity  for  claimants  i^  ex- 
haust their  remedy  by  appeal  or  otherwise,  nor  ?s  to  the  effec.  of 
the  public  r.aritime  war  between  the  two  nations.  She  declined  to 
waive  these  rights,  because  we  refused  to  revive  without  modifica- 
tion the  ancient  treaties. 

As  to  the  alleged  admissions  and  the  statements  made  and  omitted 
in  the  notes  exchanged  between  the  French  and  American  negotiators 
of  the  treaty  of  1800,  embraced  between  pages  580  and  637.  Senate 
Ex.  Doc.  102,  19th  Cong.,  1st  sess.,  a  perusal  of  those  pages  with  care 
and  anxiety  does  not  reveal  either  the  admissions  or  omissions  relied 
on  by  claimants.  Neither  any  waiving  of  the  exhaustion  of  remedies 
by  France,  nor  any  admission  of  the  validity  of  the  claims,  occurs  any- 
where in  that  negotiation.  The  various  proposals  and  counter-pro- 
posals, being  mere  diplomatic  chaffering,  might  explain,  but  could  not 
alter,  what  was  done.  Claims  for  indemnities  due  or  claimed  were 
renounced  (that  is,  as  the  word  means,  ivithdraivn) ,  and  Congress  has 
asked  tiiis  court  to  determine,  under  international  law  and  the  treaties, 
which  were  also  lav.,  whether  they  were  due  or  not. 

The  American  envoys  (Ex.  Doc.  102,  19th  Cong.,  1st  sess..  p.  587, 
etc.),  admitted  the  following  rights  of  France  under  the  law  of  nations 
by  asking  her  to  ivaive  them,  viz.,  the  conclusiveness  of  prize  judg- 
n:cnts  (i.  c,  the  exclusiveness  of  prize  jurisdiction  in  the  capiurins, 
Government),  the  right  to  construe  for  itself  the  treatv  of  1778,  as 
to  the  role  J'iyuif<a,i;c  and  the  right  to  mss  the  retaliatory  decree  of 
January  18,  1798.     The  principle  of  cor'-.usiveness  of  judgments  ac- 
tually was  incorporated  in  the  treaties  of   1800   (Art.  4)   and   1803 
'Art.  5),  and  the  necessity  for  exhausting  remedies  into  the  latter 
treaty  CArt.  4),  for  payments  were  to  be  made  in  cases  "appealed 
within  the  time  necessary."     fSee  the  treatx   in   French,  8  Stat.   L.) 
The  proposition  to  waive  her  rights  was  responded  to  bv  France  with 
the  proposition  that  the  hostile  measures,  including  the  abrogation  of 
tre.-uies.  must  be  receded  from;  for,  of  course,  if  the  nations  did  not 
mnv  agree  that  they  had  been  at  peace,  no  indemnities  would  be  due 
for  hostile  acts.     They  must  first  of  all  settle  what  their  status  had 
Iwen  and  was  now— peace  or  war.    If  peace,  what  had  been  done  that 
\v.is  of  a  hostile  character  would  thus  '.e  ndiudcrcd  to  be  illegally  and 
pirnticallv  done,  and  indemnities  might  be  due :  hut  if  w.nr,  the  ravacn 


?! 


■ 


318  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  zvar  give  rise  to  no  indemnities.  The  two  nations,  disregarding  the 
unauthorized  makeshift  reported  by  their  respective  agents  m  the  ,  ;c- 
ond  article,  adopted  the  latter  alternative-war,  and  "«  '"J""";^^ 
due  It  had  to  be  called  war  or  piracy  on  both  sides,  and  the  Presi- 
den't  and  Senate,  with  the  concurrence  of  France,  adjudged  that  it 
was  not  piracy,  but  war.  The  Chief  Justice,  Ellsworth,  our  prmcpal 
envoy,  had  said  to  the  President:  "Having  given  your  draft  of  in- 
structions such  perusal  as  the  hurry  and  pressure  of  a  court  crowding 
two  terms  into  one  admits  of.  I  remark,  with  all  the  freedom  you  in- 
vite that  to  insist  that  the  French  Goverranent  acknowledge  its  orders 
to  be  piratical,  or,  which  is  the  same,  absolutely  to  pay  for  depreda- 
tions committed  under  them.  is.  I  believe,  unusually  degrading,  and 
would  probably  defeat  the  negotiation,  and  place  us  m  the  z.-nm:-. 
(2  Flanders'  Chief  Justice,  236.) 

One's  eyes  must  be  shut  to  all  the  rights  of  France  as  a  sovereign, 
and  all  the  plainest  law  of  nations,  and  the  decisions  of  our  Supreme 
Court,  not  to  see  the  legality  of  the  laws  passed  by  France  in  retalia- 
tion for  our  injuries  to  her  and  to  force  us  to  fulfill  the  treaties  we  had 
violated  and  refused  to  fulfill.  The  Supreme  Court  said  the  nations 
were  in  a  state  of  public  zcar  authorized  by  both  Governments.  One 
of  its  reasons  for  deciding  was.  that  war  and  only  war.  could  justify 
the  depredations,  confiscations,  and  bloodshed,  on  either  side,  and  the 
honor  of  both  nations  required  it  to  be  called  war.  Now.  is  it  not 
necessary  to  establish  these  eight  propositions  before  declaring  the 
condemnation  of  these  ships  illegal? 

(1)  That  the  treaty  did  not  require  the  crew-list  when  it  mentione.1 

the  crew-list. 

(2)  That  the  French  court  had  no  right  to  constnie  the  treaty  .ic- 

cording  to  its  own  understanding  of  it. 

(3)  That  the  French  Government  had  no  right  to  pass  the  retalia- 

torv  decree. 

(4)  That  the  French  courts  had  no  right  to  decide  whether  the 
French  Government  had  such  right  under  international  law.  ^ 

(.S^  That  the  treaty,  though  violated  by  us,  was  still  binding  in  a., 
its  details  on  France. 

(6)  That  the  treaty  dispensed  with  all  proofs  except  the  pas'^port. 
which  it  said  must  be  on  board. 

(7)  That  the  judgments  of  prize  courts  are  not  exclusive  and  ((in- 
clusive against  all  the  world. 

(8)  That  there  was  peace. 


GUSHING  V.  UNITED  STATES 


319 


Allow  all  of  these  eight  propositions,  and  it  may  be  admitted  that 
the  condemnation  of  these  vessels  was  illegal.  Deny  any  one  of  tiiem, 
and  these  cases  must  fall  to  the  ground.  It  is  said  by  counsel  that 
the  decisions  of  the  French  courts  as  to  these  captures  were  always 
against  the  Americans.  Perhaps  international  law  was  likewise  against 
them.  They  were  found  violating  belligerent  rights  of  France.  But 
in  no  less  than  three  out  of  the  four  or  five  cases  exhibited  here  merely 
to  show  the  jurisdiction  of  the  court  of  cassation,  the  supreme  court 
of  error  in  France,  the  vessels  of  these  Americans  were  released.  But 
it  is  said  the  inferior  tribunals  at  least  always  decided  against  the 
captured.  This  is  also  erroneous,  for  we  have  here  a  list  of  cases 
from  St.  Domingo  decided  in  1/97  and  1799,  and  out  of  a  little  over  a 
hundred  captures  of  suspected  vessels  there  were  thirtv-three  releases. 
It  is  in  St.  Domingo  that  the  French  are  charged  with  being  most 
lawless. 

In  the  midst  of  the  most  bitter  war  ever  waged  between  France  and 
England,  the  English  courts  never  in  any  case  disputed  the  conclu- 
siveness of  French  prize  judgments.  It  is  true  that  thev  decided  that 
neutrals  were  saved  from  danger  when  recaptured  from  the  French ; 
and  so  said  Napoleon;  so  said  our  Supreme  Court  in  1  Cranch,  1.  But 
•Vapoleon  said  that  the  injustice  of  the  French  laws,  so  far  as  they 
affected  real  neutrals,  was  just  retaliation  as  regarded  the  Americans, 
for  their  Jay  treaty,  and  our  Supreme  Court,  in  that  very  case,  decided 
that  France  and  America  were  enemies  and  at  war. 

The  whole  world,  it  is  said,  are  parties  to  an  admiralty  cause,  and. 
therefore,  the  whole  world  is  bound  by  the  decision.  So  savs  Judge 
Marshall.  (9  C-  nch,  126.')  "These  sentences  arc  admisiibi;  and 
conclusive  between  the  assured  and  the  underwriters  as  to  C7rry  fact 
which  they  profess  to  decide."  (B.  &  P.  20.-)  If  a  ship  is  condemned 
as  enemy  property,  whatever  "ordinances"  mav  be  referred  to  it  is 
conclusive.  (5  East.  155.)  If  the  court  comes  to  the  conclusion  that 
the  vessel  is  not  neutral,  it  is  quite  immaterial  through  what  media  it 
arrived  at  it.  (Lord  Mansfield.  2  Taunton.  85.)  If  infraction  of 
treaty  be  the  ground,  the  condemnation  is  legal  and  conclusive,  al- 
though, where  a  treaty  required  certain  documents  on  the  ship,  niunici- 
pal  laivs  were  referred  to  as  showing  what  the  treatv  required,  and 
although  the  coiirt  "construed  the  treatv  iniquitnuslv."'  (I^rd  Fllen- 
WoufTh,  5  Ea.st.  09.)  If  the  court,  by  the  aid  of  the  ordinances  of 
Its  CO  .ntry,  reached  the  conclusion  that  it  was  enemy  property,  it  is 


n 


I 


320  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

conclusive.  The  sentence  is  conclusive  if  based  on  breach  of  treaties, 
however  there  may  not  have  been  such  a  breach.  (Id.;  Piggott,  I'or- 
eiKU  Judgments,  258;  4  Cranch,  433.)  Croudsm,  ct  d.  y.  LeonavJ, 
Johrson,  J.,  delivering  the  opinion,  held:  '"I  am  of  the  opinion  that 
the  sentence  of  condemoLtion  was  condusire  evidence  of  the  commis- 
sion of  the  offense  for  whic  the  vessel  was  condemned."  In  6  Mass. 
Reports.  277,  John  Baxter,  et  al.  v.  The  Nezv  England  Marine  Insur- 
ance Company,  it  was  held:  In  an  action  upon  a  policy  of  visuraiuc. 
the  sentence  of  a  foreign  court  of  vice-admiraUy,  condemning  the  slnp 
insured  for  a  breach  of  blockade  is  conclusive  evidence  of  the  fact  ,./ 
such  breach  of  blockade  (8  Term  Rep.  192:  id.  434:  2  nou^las. 
575  ■  6  Bee's  U.  S.  Rep.  165,  affirmed  on  appeal :  7  Term  Rep.  (.,S1 : 
2  Shower,  252;  3  B.  &  P.  201  ;  id.  499;  2  Taunton,  7.  35;  8  Mass. 

The  honorable  Chief  Justice  inquired  whether  all  the  cases  cn.d 
as  to  conclusiveness  did  not  apply  to  private  parties,  as  distinguished 

from  sovereign  nations.  -~u-  r  i 

The  litigants  were  private  parties  in  these  cases;  but  Chief  Justice 
i-!kwo.-th  and  our  other  envoys  claimed  no  sue!    distinction  when  tiny 
asked  the  Government  of  France  to  waive  the  principle.     'Ibe  u^o 
nations,  when  they  negotiated  the  treaty  of  1800   (Art.  4)   and  tin 
treaty  of  1803  (Art.  5),  recognized  that  the  principle  applied  bit  wren 
nations     We  have  only  to  look  at  the  reason  for  this  principle.    W  hat 
is  .he  reason?     Harmony,  peace,  concession  to  the  universal  u  el  tare 
of  mankind:  that  which  in  our  municipal  cases  is  called  the  policy  .f 
the  law.    It  is  the  policy  of  the  law  of  nations.    If  the  political  depart- 
ment of  one  nation  could  erect  itself  into  a  court  of  appeals  to  r.ver.e 
the  decisions  of  the  supreme  court  of  another  nation  having  bv  mt(  - 
national  law  jurisdiction  of  the  parties  and  subject-matter,  what  liti- 
gant could  ever  be  satisfied  until  his  country  had  become  involvcl  in 
war^-     (Reference  is  made  nn  this  point  to  Douglas.  619  and  61/.  and 
treaties  there  cited.     Also,  to  the  treaty  between  Great  Britain  an^l 
Denmark.  Tulv  11,  1670.  article  37:  treaty  between  Russia  and  f.reat 
Britain,  October,  1801,  article  2:  treaty  between  Louis  XI\'  and  ( .re at 
Britain,  1677,  article  12:  treaty  between  the  Netherlands  and  fliaru- 
II  of  England.  1647.  article  12;  same  parties.  1668.  article  16.    AU" 
Piggott's  Foreign  Judgments.  249;  Vattel.  b.  2,  ch.  7.  §  8? :  9  Cra^H-'i. 
126:  Campbell  v.  Mullett,  2  Swanston.  576,  577.  578,  570.  584,  ,-<«-. 
.-ilso,  article  5.  treatv  of  the  Hnited  ?tnte«!  and  France,  1803. > 


GUSHING  V.  UNITED  STATES 


321 


The  treaties  referred  to  recognize  that  the  jurisdiction  of  prize 
belongs  exclusively  and  finally  to  the  capturing  Government.  For 
instance:  "If  the  King  of  France  shall  complain  of  the  unjustness  of 
sentences  which  have  been  given  concerning  the  ships  or  merchandise 
taken  at  sea  (or  of  the  wronj,'  interpretation  of  the  treaty  by  the 
courts),  the  King  of  Great  liritain  shall  forthwith  commission  under 
his  great  seal  nine  of  his  privy  counsel  to  adjudge  such  matters  and 
to  confirm  or  revoke  these  sentences. "  So  we  see  that  according  to 
the  theory  of  these  treaties  unless  the  Government  of  the  captor  does 
not  choose  to  reverse  the  decision  of  his  own  courts  their  decisions 
stand  conclusive  against  the  other  nations.  Such  is  the  law  of  nations 
as  to  prize  judgments.  This  does  not  prevent  a  nation  from  claim- 
ing anything  it  may  desire  or  another  nation  from  granting  what  is 
claimed  if  it  sees  fit. 


Davis,  J.,  delivered  the  opinion  of  the  court : 

This  case,  with  others  like  it,  was  fully  argued  at  the  last  term, 
and  after  careful  study  and  industrious  conference  an  opinion  was 
delivered  upon  the  general  principles  applicable  to  the  claims  as  a 
class,  while  final  and  detailed  findings  were  delayed,  at  the  defendants' 
request,  until  after  the  summer  recess.  During  this  reces ,  the  law 
officers  of  the  Government,  diligently  and  jealously  guarding  the  in- 
terests intrusted  to  them,  have  carefully  studied  not  only  the  facts  of 
the  several  cases,  but  have  reexam.ined  the  general  principles  applicable 
to  the  claims  as  a  class — princii'Ies  understood  to  have  been  finally  set- 
tled, so  far  as  this  court  is  concerned,  by  the  former  decisions. 

The  defendants  now  move  for  a  rehearing,  and  somewhat  contrary 
to  the  usual  practice,  but  in  furtherance  of  the  substantial  ends  of 
justice,  a  full,  able,  and  learned  argument,  occupying  nearly  two  weeks, 
has  been  had,  in  which  all  the  questions  heretofore  considered  have 
ag->in  been  exhaustively  discussed.  Thus,  upon  a  motion  for  permis- 
sion to  reargue  the  case,  it  has  in  fact  been  reargued,  and  in  deciding 
the  motion  we  act  with  all  the  light  we  should  have  received  had  the 
more  technical  course  been  pursued  of  first  allowing  the  motion  and 
then  hearing  the  reargument. 

The  learned  Solicitor-General,  who  has  personally  appeared  with 
the  assistant  attorney  of  the  United  States  who  so  competently  con- 
ducted the  defense  of  these  claims,  takes  as  the  text  of  his  argument 
certain  suggested  conclusions  of  law,  twenty-five  in  number,  many  of 


* 


322 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


wliicli  may  be  readily  admiited,  either  standing  alone  or  in  the  con- 
nection in  which  they  are  used,  without  leading  to  a  result  different 
from  that  already  reached  by  this  court ;  while  considered  as  a  whole 
they  form  the  successive  links  of  a  chain  of  argument  which,  if  per- 
fect, defeats  all  the  claims  submitted  under  the  act  of  Congress. 

Many  of  the  difficulties  surrounding  these  cases  will  disappear  under 
the  touchstone  of  the  jurisdictional  act,  for  it  must  always  be  remem- 
bered that  we  are  not  now  to  decide  in  accordance  with  the  general 
statutes  giving  us  exclusive  jurisdiction  of  actions  between  the  citi- 
zen and  his  Government  founded  on  contract,  nor  yet  under  the  special 
jurisdiction  conferred  by  such  laws  as  the  "Bowman  Act,"  by  which, 
in  aid  of  Congress,  we  report  facts  to  that  body  or  its  committees,  and 
facts  and  law  to  the  Executive  Departments  for  their  "guidance  and 
action;"  nor  under  the  jurisdiction  given  by  Section  1063  of  the 
Revised  Statutes,  which  authorizes  us  to  proceed  to  final  judgment  in 
claims  of  a  certain  nature  transmitted  to  us  by  the  heads  of  the  prin- 
cipal Executive  Departments.  In  all  these  cases  we  sit  as  a  court 
bound  to  administer  the  law  found  in  the  Constitution,  statutes,  and 
common  law  of  the  United  States  as  interpreted  by  the  Supreme  Court, 
and,  so  far  as  we  have  yet  seen,  not  one  of  the  spoliation  claims  could 
have  the  slightest  pretense  of  a  successful  result  were  the  investigation 
to  be  measured  by  the  standa:  d  set  for  us  in  other  causes.  It  can  not 
be  presumed  that  Congress,  in  passing  the  act  of  1885,  with  full  knowl- 
edge of  the  law  and  facts,  intended  an  empty  form;  therefore  it  fal- 
lows that  they  desired  us  not  only  to  examine  these  claims,  hu:  to 
examine  them  in  the  light  of  some  rule  different  from  that  upon  whirli 
we  must  ordinarily  proceed. 

The  statute  says  that  those  citizens  or  their  legal  representafivt^ 
who  had  "valid  claims"  of  a  specified  class  upon  the  French  <',ov- 
ernment,  arising  out  of  certain  illegal  acts  committed  prior  to  th(  rati- 
fication of  the  treaty  of  1800,  may  apply  to  this  court  (§  IV  -o  .ire 
then  to  determine  the  validity  and  amount  of  these  claims  "aocordiii.: 
to  the  rules  of  law,  municipal  and  international,  and  the  treaties  of  tt,. 
United  States  applicable  to  the  same,"  but  we  can  not  enter  iu.';r- 
ment:  on  the  contrary,  after  the  hearing  we  may  only  report  to  •  c 
Congress  such  conclusions  of  f.-ict  and  law  as  in  our  opir^n'  -v.r- 
affect  the  liability  of  the  United  States  for  these  claims  (§§  ••  :^-  ('' 
and  this  report  is  binding  on  neither  the  claimant  nor  the  Cn--re«- 
f§6). 


GUSHING  V.  UNITED  STATES 


323 


The  first  question  presented,  then,  is  as  to  the  validity  of  the  claims 
against  France.  This  is  an  international  question  not  within  the  scope 
or  ordinary  judicial  inquiry,  and  is  to  be  measured  by  rules  of  law 
well  known,  thoroughly  recognized,  and  often  enforced,  but  which  in 
the  very  nature  of  things  are  not,  in  the  absence  of  special  legislative 
authority,  presented  to,  argued  before,  or  passed  upon  by  the  judicial 
departments  of  Governments.  These  rules  of  law  relate  to  the  rights 
and  obligations  of  nations,  not  to  the  title  to  property,  nor  to  the 
rights  of  individuals  between  themselves,  nor  yet  to  the  rights  of  indi- 
viduals against  their  own  Governments. 

While  many  of  the  propositions  of  the  defense  are  in  the  ab>tract 
souikI,  they  rest  upon  the  basis  that  these  claimants  are  prosecuting  a 
legal  right  in  a  court  of  law  acting  under  the  usual  common-law  re- 
strictions of  such  a  tribunal  sitting  as  a  subordinate  agent  of  the  State 
with  strictly  defined  procedure  and  jurisdiction.  So  far  as  power  is 
concerned  this  court  is  not  so  sitting  in  these  cases;  "judicial  power  is 
the  internal  or  civil  branch  of  executive  power  exerting  itself  under 
sucii  checks  and  controls  as  the  legislative  power  has  subjected  it  to" 
(11  Rutherforth,  59)  ;  those  checks  and  controls  are  well  defined  and 
well  understood,  and  are  such  as  operate  to  defeat  in  judicial  tribunals 
diplomatic  claims  founded  upon  international  right. 

We  are  for  the  present,  to  a  limited  degree,  absolved  by  express  act 
of  the  legislature  from  these  checks  and  controls. 

That  is,  we  are  to  aid  the  political  department  of  the  Government, 
by  its  direction,  in  the  disposal  of  contentions  which  arise  from  past 
international  transactions,  and  while  the  claims  of  individuals  now 
hefore  tis  are  not,  from  a  judicial  point  of  view,  legal  rights— that  is, 
thtv  lo  not  constitute  causes  of  action— they  may  be  none  the  less 
nsht-:  that  is.  they  may  be  founded  on  law  but  not  enforceable  in  a 
-■ 'urt  of  law. 

V>  e  do  lot  intend  to  assume  any  legislative  function  or  to  determine 
Jn^  absr— .ct  right,  for  our  power  is  fixed  and  defined  by  tjie  .\ct  of 
:'cre>  which  authorizes  no  such  course,  hut  which  does  require 
r  more  than  a  bare  opinion  that  there  can  be  no  recnver\-  on 
C3nns  in  the  courts:  that  was  known  licfnrc  the  statute  was 
nd  the  leirislature  have  instructed  n-;  by  that  statute  to  advise 
3=^  -WT  as  to  the  law  enforceable  in  courts  of  law.  not  as  to  abstract 
"--  ■--  "^^  a'  -^  the  law  enforceable  within  their  own  higher  jurisdic- 

3HC. 


- 


'.  ^ss 


I     I 


ti    » 


V  ' 


324 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


We  have  already  held  that  the  depredations  made  by  France  upon 
our  commerce  were  illegal,  and  notwithstanding  the  able  argument  of 
the  defense,  sustained  by  the  results  of  most  industrious  investiga- 
tion, we  do  not  see  reas'  \  for  changing  this  conclusion.    The  quota- 
tions in  our  previous  opinion  .how  that  the  Government  of  the  United 
States  uniformly  insisted  upon  the  illegality  of  the  conduct  nf  France 
and  never  failed  to  demand  redress;  they  show  that  France  admitted 
the  principle  of  the  American  contention;  that  Spain  paid  claims  of 
this  class ;  that  England  did  the  same,  and  that  by  the  principles  of 
the  law  of  nations  aside  from  any  definite  compact  such  as  that  of  1778, 
the  injuries  to  our  commerce  afforded  good  foundation  for  diplomatic 
demand.    Upon  the  second  branch  of  the  case  we  held,  and  in  support 
of  the  position  cited  copiously  from  the  contemporaneous  negotiations 
and  instructions  of  the  American  Secretaries  of  State,  and  from  the 
correspondence  and  journals  of  the  American  ministers  charged  with 
the  protection  of  American  interests,  that  by  the  cancellation  of  the 
second  article  of  the  treaty  of  1800  the  United  States  set  off  the  spolia- 
tion claims  against  those  claims  which  France  had  against  us,  claims 
which  our  representatives  thought  of  so  much  gravity  and  of  so  much 
value  as  to  authori.re  an  offer,  refused  by  France,  of  many  millions  of 
francs  for  a  .-elcasc. 

It  seems  unnecessary  to  repeat  those  voluminous  citations,  or  to  .idd 
to  them,  from  the  mass  of  correspondence  which  we  have  read,  ox- 
tracts  which  would  be  merely  cumulative.  We  have  carefully  n- 
examined  the  question  in  the  light  of  the  reargument,  and  nevertln'- 
Icss  adhere  to  the  conclusions  reached  last  term  after  exhaustive  dis- 
cussion by  counsel  and  patient  and  laborious  investigation  by  oi:r- 
selves,  that  these  claims  (as  a  class)  were  valid  obligations  fmm 
France  to  the  United  States,  that  the  latter  surrendered  them  to  Franci' 
for  a  valuable  consideration  benefiting  the  nation,  and  that  this  n^e 
of  the  claims  raised  an  obligation  founded  upon  right,  and  up<^n  tlir 
Constitution  (which  forbids  the  taking  of  private  property  for  pi  hiir 
use  without  compensation),  to  compensate  the  individual  sufftrrrs 
for  the  losses  sustained  by  them. 

We  do  not  decide  nor  have  we  attempted  to  decide  that  the  cotuliui 
of  the  Government  after  the  Revolution  and  prior  to  the  tre.ifv  cf 
1800  was  or  was  not  wise,  proper,  or  justifiable,  questions  which  are 
within  the  domain  of  the  historian,  and  have  not  been  siibmittc'l  to 
us;  we  advise,  whether  in  performance  of  their  public  duties,  and  in 


GUSHING  V.  UNITED  STATES 


325 


P 


protection  of  the  commonwealth,  and  in  carrying  out  the  directions  of 
those  having  the  right  to  give  them,  or  in  fulfillment  of  the  powers  and 
obligations  conferred  and  imposed  by  the  Constitution  and  laws,  the 
statesmen  of  that  period  took  such  action  in  relation  to  private  rights 
as  raised  an  obligation  on  the  part  of  the  Government  to  compensate 
the  citizen. 

We  are  to  see  whether  the  claims  urged  on  France  were  valid 
wliether  each  particular  claim  brought  before  us  is  one  of  the  class 
defined  in  the  statute,  whether  it  was  valid  in  law  against  France,  and 
whether  the  United  States  became,  by  their  action  in  1800  and  1801 
liable  over  to  the  individual. 

The  Government  again  urges  that,  as  there  was  war  between  the 
United  States  and  France,  the  seizures  were  justifiable.  This  point 
we  have  so  fully  discussed  in  the  opinion  delivered  at  the  last  term 
that  now  it  seems  necessary  only  to  sum  up  our  conclusions  and  to 
consider  one  or  two  incidental  points  pressed  with  particular  energy 
by  the  defense  at  this  argument. 

There  were  what  were  called  by  some  "hostilities,"  by  others  "dif- 
ferences," by  Congress  "the  system  of  predatory  violence"  ( 1  Stat  L 
578).  by  Justice  Paterson  "a  qualified  state  of  hostility."  "war  quoad 
hoc:  and  by  Justice  Chase  "limited  partial  war."  The  executive  de- 
partment said  the  conduct  of  France  would  have  justified  a  declara- 
tion of  war,  but  the  United  States,  "desirous  of  maintaining  peace  " 
contented  themselves  "with  preparations  for  defense  and  measures 
calculated  to  defend  their  commerce"  (Doc.  102.  p.  561),  while  the 
United  States  ministers,  speaking  of  the  American  statutes,  wrote 
that  "they  did  not  even  authorize  reprisals  upon  [French]  merchant- 
men, but  were  restricted  simply  to  the  giving  of  safety  to  their  own 
till  a  moment  should  arrive  when  their  suflFcrings  could  be  heard  and 
redressed." 

Congress  did  not  consider  war  as  existing,  f.ir  everv  aggressive 
stafnie  looked  to  the  possibility  of  war  in  the  future,  making  no  pro- 
vision for  war  in  the  present,  and  Fr.uice.  oiir  supposed  enemy,  abso- 
liitclv  denied  the  existence  of  war.  So  tlien,  the  legislative,  judicial, 
and  executive  branches  of  our  Government  recognized  no  war,  n,\ 
public  solemn  war,  as  existing,  and  the  opposing  party  denied  the  fact. 

It  lias  iK'en  urged  that  the  compact  <^f  1800  vyns  a  frentv  of  p.-.u-^^ : 
l.iit  xve  do  not  agree  with  this  contention,  for  reasons  which  we  give 
fiirlher  on.  after  first  considering  the  subordinate  suggestion  made 
m  relation  to  the  caption  of  that  treaty  as  found  in  print. 


326 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


Curiously  neither  of  the  originals,  that  supposed  to  be  in  the  custody 
of  P'rance  nor  that  supposed  to  be  in  the  Department  of  State,  is 
obtainable.  That  belonging  to  this  Government  long  since  disappeared, 
and  we  are  informed  that  a  like  fate  has  befallen  the  French  copy. 
We  are  therefore  forced  to  turn  to  the  copies  in  print  in  various  com- 
pilations of  treaties  to  see  what  assistance  can  be  obtained  from  a 
careful  comparison  of  them.  No  material  difference  appears  anywhere 
but  in  the  caption,  and  there  we  should  expect  to  find  it,  as  the  caption 
is  not  part  of  the  treaty,  and  is  usually  drawn  to  suit  the  taste  of  the 
editor.    The  caption  in  the  Revised  Statutes  runs  as  follows : 

Convention  of  peace,  commerce,  and  navigation  with  France, 
concluded  at  Paris.  September  30,  1800:  ratification  advised  by 
Senate,  with  amendments,  Februarv  3,  1801;  ratified  by  Presi- 
dent, February  18.  1801 ;  ratified  by  First  Consul  of  France,  with 
Senate's  amendments,  etc. 

Martens'  French  collection  of  treaties  contains  the  head-note,  "Con- 
vention entre  la  Repuolique  Frantjaise  et  les  Etats-Unis  d'Amerique. 
signee  le  30  Septembre.  1800."  and  the  editor  says  he  had  not  a  copy 
from  the  original  treaty,  but  relied  upon  another  publication.  1^ 
Clerc  has  a  brief  caption  containing  the  word  "peace."  The  caption 
in  the  Bancroft  Davis  edition  of  treaties  entitles  the  compact  a  'C'  :i- 
vention  between  the  French  Republic  and  the  United  States  of  .\mer- 
ica."  and  gives  the  dates  of  signature,  exchange,  and  proclamation; 
while  the  caption  in  volume  8  of  the  Statutes  at  Large,  prepared  in 
1846,  runs  simply  as  follows:  "Convention  between  the  French  Re- 
public and  the  United  States  of  America."  h  should  be  noticed  as  to 
this  copy  that  the  letter  from  the  committees  of  Congress  fotnui  at 
the  beginning  of  volume  8  states  that  they  "learn  that  every  law  and 
treaty  has  been  carefully  collated  with  the  originals  in  the  I>partnient 
of  State." 

In  Mr.  Adams's  message,  dated  December  15,  1800,  transmittini;  the 
treaty  to  Congress,  the  head-note  is  exactly  as  in  volume  8  of  the 
Statutes  (2F.  R.  29.";). 

\o  inference,  therefore,  can  he  drawn  from  the  caption,  and  the 
nature  of  the  treaty  must  be  gleaned  from  its  contents,  for  if  it  con- 
cludes a  war  that  fact  will  necessarily  appear  in  some  form  as  it  does 
in  the  treaties  of  1783  and  1814  with  Great  Britain,  and  in  the  trritv 
of  1848  with  Mexico.  The  object  of  the  treaty  is  stated  to  he  .i  ter- 
mination c)f  the  "differences"  between  the  two  countries,  not  of  the 


t* 


GUSHING  V.  UNITED  STATES 


327 


••war"  nor  even  of  the  "hostilities"  alleged  here  to  have  existed  between 
them.  Next  it  should  be  observed,  and  this  is  a  vital  distinction,  that 
the  treaty  is  of  limited  duration ;  it  is  to  l^e  in  force  for  eight  years 
only.  Article  V  speaks  of  a  "misunderstanding" ;  and  in  the  twenty- 
seven  articles  of  the  agreement,  which  cover  the  many  different  sub- 
jects at  that  time  usually  found  in  a  treaty  of  amity  and  commerce 
there  is  nothmg  to  indicate  that  in  the  opinion  of  the  parties  there 
had  been  a  public  solemn  war  or  that  they  were  making  a  treaty  of 
peace. 

We  are  again  cited  to  Bas  v.  Tingy  (4  Dallas),  a  case  which  we 
considered  very  carefully  in  our  previous  opinion  and  from  which  we 
made  very  full  quotation,  holding  that  it  decided  the  state  of  affairs 
under  discussion  to  constitute  partial  war  limited  by  the  acts  of  Con- 
gress. The  opinions  of  the  Supreme  Court  speak  very  clearly  as  to 
the  relations  of  the  nations,  but  it  is  well  to  bear  distinctly  in  mind 
that  the  court  was  dealing  not  so  much  with  h  oad  principles  of  inter- 
national law  as  with  the  interpretation  of  statutes.  Tingv  claimed 
salvage  for  the  rescue  of  the  Elica  from  a  French  privateer,  and  this 
claim  he  based  upon  the  seventh  section  of  the  Act  of  March  2  1799  (1 
Stat.  L.  716). 

The  act  is  entitled  "An  act  for  the  government  of  the  Navy  of  the 
L  nited  States,"  and  the  seventh  section  makes  provision  for  salvage 
to  naval  vessels  for  American  vessels  retaken  from  France;  in  con- 
struing this  statute  the  court  referred  to  the  act  of  June  13  1798  as 
explanatory  of  the  relations  between  the  L'nited  States  and  France 
This  latter  act  being  "An  act  to  suspend  the  commercial  intercourse 
between  the  United  States  and  France,  and  the  dependencies  thereof  " 
doe.s  not  in  any  way  lead  to  the  inference  that  public  solemn  war  existed 
for  If  such  war  existed  a  formal  suspension  of  commercial  relations 
would  be  unnecessary,  and  the  contents  of  the  statute  negative  th*- 
mferencc  of  war  especially  in  the  provision  that  no  French  vessels 
armed  or  unarmed,  commissioned  by  or  for  nr  under  the  authority  of 
the  French  Republic,  or  owned,  fitted,  hired,  or  employed  by  any  per- 
son resident  within  the  territory  of  that  Republic,  or  anv  of  the  de- 
pendencies thereof,  or  s.-iiling  or  coming  therefrom,  excepting  any 
vessel  to  which  the  President  of  the  Tnifcl  Stnfes  shall  grant  a  pass- 
port .  shall  be  allowed  an  entry  or  to  remain  within  the  ter- 
nt'Ty  of  the  Tnited  States  unless  driye-n  there  bv  distress  of  weather 
or  m  want  of  provisions,"  and  the^e  .li.tre^.od  y.-ssels  are  to  be  allowed 


328 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


M  S 


to  provision  and  refit  (§3),  something  ceruinly  not  permitted  either 
in  time  of  war  or  reprisal. 

The  Act  of  Jutu  26,  1798  (1  Stat.  L.  574),  also  considered  by  the 
court,  was  intended  as  an  addition  to  that  of  June  13,  1798  (1  Stat. 
L.  565),  and  makes  provision  as  to  the  amount  of  salvage  to  be  re- 
ceived by  American  war  vessels  capturing  French  armed  vessels  dur- 
ing what  the  latter  act  describes  as  the  "aggressions,  depredations, 
and  hostilities"  encouraged  and  maintained  "by  the  Government  of 
France,"  and  which  it  does  not  describe  as  war. 

The  decision  of  the  Supreme  Court  therefore  goes  to  this  extent 
and  no  more,  that  for  the  purpose  of  a  recovery  of  salvage  France 
was  an  enemy  to  the  extent  the  acts  of  Congress  prescribed. 

It  has  been  urged  that  the  treaty  of  1800  was  a  solemn  adjudica- 
tion of  the  claims  adverse  to  this  Government,  but  we  are  of  opinion 
not  only  that  this  position  is  negatived  by  the  treaty  itself,  but  that  the 
negotiations  which  preceded  that  contract,  and  which  may  very  prop- 
erly be  referred  to  for  explanation  if  there  be  ambiguity  in  the  docu- 
ment, do  not  support  such  a  contention.  Those  negotiations  having 
been  commented  uj/on  by  us  heretofore,  we  need  not  now  repeat  them, 
while  as  to  the  expunged  second  article  of  the  treaty,  that  upon  which 
this  contention  hangs,  it  is  sufficient  to  note  the  statement  that  as  the 
ministers  were  "not  able  to  agree  respecting"  the  treaties  of  1778  and 
1788,  nor  upon  the  indemnities  "mutually  due  and  claimed,  tlic  i>..r 
ties  will  negotiate  further  on  these  subjects  at  a  convenient  time " 
Meanwhile  the  treaties  are  to  have  no  effect  and  the  relations  of  the 
countries  are  to  be  governed  by  the  treaty  of  1800. 

The  claims  made  by  France,  for  which  the  United  States  offereil 
millions  of  francs  for  release,  were  national,  and  were  based  upon  the 
provisions  of  the  treaties  of  1778.  The  claims  for  indemnity  whirh 
we  had  constantly  urged,  and  whose  payment  Pickering  demanded 
as  an  ultimatum,  were  what  are  known  as  the  "spoliations  claim< " 
In  the  entire  negotiation,  as  we  have  shown  in  our  former  opinions 
French  claims  based  upon  treaty  obligations,  past  and  future.  \v  rc 
set  up  against  American  claims  for  illegal  seizures.  condemn.itintK 
and  confiscations. 

To  he  sure,  Pickering  makes  a  passing  mention  of  national  rl.iim^ 
on  the  part  of  the  United  States,  adding  that,  as  national  rl.nim«  mnv 
probably  he  less  definite  than  those  of  individuals,  and  consennentl-, 
more  difficult  to  adjust,  "national  claims  mav  on  both  sidei  he  rrliti- 


GUSHING  V.  UNITED  STATES  329 

quished."  (Doc.  102,  p.  566.)  An  examination  of  the  negotiations 
will  show  that  such  claims  on  our  side  «ere  not  pressed,  wliile  on  ilie 
French  side  they  were  strongly  urged. 

Nowhere  is  the  contention  more  concisely  formulated  than  in  the 
communication  of  J.  Bonaparte  and  his  colleagues  to  the  American 
Commissioners,  wherein  the  French  ultimata  are  set  forth  in  this  form- 
"Either  the  ancient  treaties,  with  the  privileges  resulting  from  priority 
and  the  stipulation  of  reciprocal  indemnities,  or  a  new  treaty  assuring 
equality  without  indemnity."    (Doc.  102,  p.  618.) 

"At  the  opening  of  the  negotiations,"  said  the  Secretary  of  State  to 
the  American  ministers,  "you  will  inform  the  French  ministers  that 
the  United  States  expect  from  France,  as  an  indispensable  condition 
of  the  treaty,  a  stipulation  to  make  to  the  citizens  of  the  United  States 
full  compensation  for  all  losses  and  damages  which  they  shall  have 
sustained  by  reason  of  irregular  or  illegal  captures  or  condemnations 
of  their  vessels  and  other  property  under  color  of  authority  or  com- 
missions from  the  French  Republic  or  its  agents"  (Doc.  10^  p  =?62)  • 
and  he  closed  this  instruction  with  several  points  "to  be  considered 
as  ultimata."  the  first  of  which  was:  "That  an  article  be  inserted  for 
establishing  a  board,  with  suitable  powers  to  hear  and  determine  the 
claims  of  our  citizens  for  the  causes  hereinbefore  expressed,  and  bind- 
ing France  to  pay  or  secure  payment  of  the  sums  which  shall  be 
awarded,  while  the  second  point  prohibited  recognition  of  the  old 
treaties. 

There  never  was  a  substantial  retreat  on  either  side  from  these 
absolutely  diverse  positions,  although  there  was  considerable  vacilla- 
tion, until  finally,  in  a  spirit  of  patriotism,  the  representatives  of  the 
United  States  abandoning  Mr.  Pickering's  ultimata,  consented  to  leave 
the  question  still  open,  as  it  is  found  in  the  second  article  of  the 
treaty.    That  article,  in  terms,  admits  that  there  existed  differences  as 
to  the  treaties  of  1778,  and  in  ternis  it  states  that  indemnities  are 
nintual!y  due  and  claimed."     If  indemnities  are  mntuallv  "due"  and 
indemnifies  are  mutually  "claimed,"  the  instructions  and  the  negotia- 
tion, prior  to  the  treaty  should  show  what  those  ".Itie"  ,nnd  "claimed" 
.ndemnities  are.     They  do  show  thnt  upon  one  side  thev  were  claims 
for  national  indemnity  under  treaty  oWiirntions :  on  the  other  side 
claims  for  indemnitv  for  spoliations.    As  the  treatv  states  that  indem- 
nitirs  are  "claimed,"  and  as  it  states  that  indemnities  are  "due  "  we 
ran  not  agree  that  it  operates  as  an  adjiidica.        of  those  claims  upon 
w  I'ich  the  indemnities  are  founded. 


330 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


The  jurisdictional  act  also  negatives  this  assumption  in  its  direction 
that  we  shall  examine  valid  claims  arising  out  of  certain  acts  com- 
mitted prior  to  the  ratification  of  the  treaty  of  1800,  thus  negativing 
so  far  as  this  court  is  concerned  any  possible  final  adjudication  by  that 
international  agreement.  The  statute  instructs  us  not  to  investigate 
claims  now  valid  against  France,  or  claims  which  citizens  now  have 
against  France,  but  valid  claims  which  citizens  "had"  against  France 
and  which  arose  out  of  certain  illegal  acts  committed  prior  to  the 
treaty's  ratification. 

By  the  action  of  the  President  and  Senate  on  the  one  side,  and  of 
Napoleon  on  the  other,  the  second  article  was  expunged  from  the 
•reaty  upon  agreement  that  "the  two  states  renounce  the  respective 
pretensions  which  were  its  object."  Thus,  for  the  purpose  of  quieting 
the  difficulties  and  dangers  flowing  from  the  treaties  of  1778,  to  avoid 
the  French  claims,  from  which  a  release  had  been  asked  at  an  offered 
price  of  many  million  francs,  to  save  the  young  Republic  from  inter- 
nal dissension  and  from  danger  from  without,  the  American  authorities 
surrendered  to  France  the  claims  for  spoliations  upon  which  up  to 
that  moment  they  had  most  steadily  and  most  strenuously  insisted. 

The  alleged  reprisals  committed  by  this  country  upon  French  com- 
merce were  most  limited  in  their  nature,  and  hardly  amounted  to  more 
than  is  allowed  by  the  natural  law  of  self-defense — that  law  which,  by 
not  obliging  us  to  part  with  our  lives,  our  limbs,  or  our  property,  allows 
us  to  defend  our  persons  and  our  goods. 

The  reprisals  were  authorized  and  defined  by  acts  of  Congress,  the 
first  of  which  was  passed  in  June.  1798,  and  the  last  in  January,  1799. 
The  Act  of  June  25,  1798  (1  Stat.  L.  572),  authorized  "the  defense" 
of  merchant  vessels  against  "French  depredations,"  and  to  that  end 
permitted  the  merchantman  to  oppose  search,  restraint,  or  seizure  at- 
tempted by  an  armed  French  vessel,  permitted  the  merchantman  to 
repel  by  force  any  assault  by  such  a  French  vessel,  authorized  liim  tn 
capture  such  an  assaulting  vessel,  and  permitted  the  merchantman  to 
retake  any  other  American  merchantman  captured  by  any  arnieil 
French  vessel. 

The  second  section  of  this  act,  which  provided  for  salvage  rrfcr* 
to  the  case  of  the  capture  of  a  French  "armed"  vessel,  from  which  an 
ns'.aiilt  or  other  hostility  "shall  be  first  made":  and  Section  ^  rpi|nin-^ 
a  hnnd  from  armed  merchantmen  that  they  shall  commit  no  "unpro- 
voked violence"  acrainst  the  vessel  of  anv  nation  in  amity  with  the 


CUSHING  V.  UNITED  STATES  331 

United  Sutes.  Finally,  the  sixth  section  directs  that  when  France 
shall  stop  the  "lawless  depredations  and  outrages  hitherto  encouraged 
and  authorized  by  that  Government  against  the  merchant  vessels  of 
the  Lnited  States,  and  shall  cause  the  laws  of  nations  to  be  observed  " 
the  President  shall  mstruct  the  merchantmen  to  submit  to  search  and 
to  refrain  from  violence. 

As  to  the  next  act.  passed  th  ee  days  later  (1  Stat  L  574)  it  is 
only  necessary  to  note  that  re.  aptures  were  to  be  restored  after  salvage 
paid  the  recaptors.  nothing  g>  ing  to  the  Trcasur>'.  The  9th  of  Julv 
followmg  an  act  was  passed  to  "protect  the  commerce  of  the  Ignited 
States,  which  authorized  the  President  to  give  private  armed  vessels 
the  same  license  and  authority  to  take  armed  vessels  of  France  and 
to  recapture  American  vessels,  as  public  armed  vessels  of  the  United 
States  had  by  law  (1  Stat.  L.  578,  §  2) :  -armed-  French  vessels  cap- 
tured to  be  absolutely  forfeited  to  the  capturing  vessel,  which  should 
receive  also  just  and  reasonable  salvage  on  all  recaptures.    (§§56) 

The  license  and  authority  given  the  public  armed  vessels  of  the 
United  States  are  found  in  the  first  section  of  this  act  of  9th  Julv 
1798  and  also  in  a  prior  act  entitled  "An  act  more  effectually  to  pro^ 

m«  ?iTT7'  'J!?,  r'''  °^  '^'  ^'"''•^^  ^'^''''"  proved  Mav  28. 
1798  (1  Stat.  L.  561),  which  permitted  the  seizure  only  of  "such 
French  armed  vessels  as  had  committed,  or  were  hovering  on  our 
coasts  for  the  purpose  of  committing,  depredations  on  vessels  belong- 
ing to  citizens  of  the  United  States,  and  also  permitted  the  recapture 
of  American  vessels  seized  by  the  French.  The  act  of  July  went  fur- 
ther than  this,  and  authorized  the  President  to  instruct  the  commanders 
of  pubhc  armed  vessels  to  "subdue,  seize,  and  take  any  armed  French 
vessel  which  shall  be  found  within  the  jurisdiction  of  the  United 
States,  or  elsewhere  on  the  high  seas."  The  authority,  therefore  given 
to  arnied  merchantmen  by  this  statute  was  to  subdue,  seize,  and  take 
any  French  "armed"  vessel,  and  to  recapture  any  American  vessel 

These  statutes  seem  to  us  not  only  defensive  in  their  character,  but 
also  marked  by  self-restraint  and  calm  judgment.  Notwithstanding 
the  persistent  attacks  by  France  upon  the  American  mercantile  marine 
no  permission  is  given  in  this  legislation  to  injure  French  commerce' 
armed  vessels  only  are  to  be  seized,  and  American  vessels  may  be  re- 
unmolls    d'^^"''^''  ^''"'^^  merchantmen  may  pursue  their  voyages 

A  system  of  reprisals  goes  further  than  this,  for  it  is  based  upon  the 


t 


332 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


h 


principle  of  compensation,  and  is  aggressive,  not  defensive,  in  spirit 
and  intent. 

Reprisals  [says  Vattel,  lib.  2,  p.  342]  are  used  between  nation 
and  nation  to  do  justice  to  themselves  when  they  can  not  other- 
wise obtain  it.  If  a  nation  has  taken  possession  of  what  belongs 
to  another;  if  it  refuses  to  pay  a  debt,  to  repair  an  injury,  to  make 
a  just  satisfaction,  the  other  may  seize  what  belongs  to  it  and 
apply  it  to  its  own  advantage,  till  it  has  obtained  what  is  due  for 
interest  and  damage,  or  keep  it  as  a  pledge  until  full  satisfaction 
has  been  mad;.    In  the  last  case  it  is  rather  a  steppage  or  a  seiz- 

e  than  reprisals,  but  they  are  frequently  confounded  in  common 
language. 

Dr.  Woolsey  says  reprisals  consist  in  recovering  what  is  our  own  by 
force,  then  in  seizing  an  equivalent.  We  do  not  attempt  to  lay  down 
any  general  rule  of  law  on  this  question  of  reprisals,  but  a  study  of 
the  authorities  leads  to  the  conclusion  that  the  action  is  affirmative 
and  aggressive  in  character,  having  for  its  object  compensation.  The 
essence  of  reprisals  has  been  said  to  be  security — that  is,  the  seizure 
of  property  for  protection  until  just  claims  are  settled,  but  we  do  not 
see  that  the  principle  of  compensation  is  thereby  changed,  as  the 
seizure  of  property  for  security  must  be  directed  by  an  effort  to  obtain 
security  sufficient  in  amount  to  provide  compensation  should  the  dc 
mand  for  redress  be  unsuccessful. 

The  statutes  we  have  cited  have  no  such  object ;  they  are  not  aggres- 
sive in  their  provisions  or  in  the  power  they  give,  but  entirely  defen- 
sive, except  in  the  instance  of  seizing  armed  vessels  or  retaking  cap- 
tured .'\merican  vessels.  The  aim  of  the  statute  is  defense  of  our 
merchantmen,  not  depredations  upon  the  commerce  of  France,  not  com- 
pensation to  the  United  States  for  losses  already  incurred,  not  security 
for  demands  heretofore  made,  but  protection  and  safety  in  the  future 
It  seems  to  us,  therefore,  that  these  acts  lack  the  essential  elements  of 
statutes  of  reprisals.  Two  suggestions  occur  to  us  in  concluding  thi- 
point.  If  there  were  a  state  of  war  or  a  state  of  reprisals  existing:, 
why  should  distressed  French  vessels  be  allowed  to  refit  and  provision 
in  our  ports  as  they  were  by  the  express  provisions  of  the  .  ^ct  of  Janu- 
ary 30,  1799  (1  Stat.  L.  614)  ?  The  Government  of  the  lJnite<l  States 
could  not  hnve  considered  that  it  was  at  war,  or  that  a  state  of 
reprisals  existed,  for  the  instnictions  of  Mr.  Pickering,  the  Secretary 
of  State,  and  the  mouthpiece  of  the  Government,  entirely  negative 
such  a  supposition.    (Doc.  103,  pp.  56\  el  scq.) 


GUSHING  V.  UNITED  STATES  333 

In  the  face  of  these  statutes  the  seizure  of  a  merchant  vessel  can 
not  be  justified  on  the  one  ground  that  she  was  armed;  and  more 
especially  ,s  this  true  as  to  seizures  during  the  period  when  these  claims 
Tth;  Ir'r    A^'"'/°  ^""^  '^''"''  ''''  P'^^»"  °f  ^he  Caribbean, 

/li:pi^^s^\^^  srhoidi-rsr^i:^-^ 
att  a?dia'frsrs.-r  atI:;-:  r^^^^ 

armed,  and  it  is  necessary ryThouict'e^so"""  '""XlTn  Z 
wisdom  of  Congress  substituted  an  embargo  for  a  declaration  of 

etly'Ste^rthf  Unio°n'   ^^'^   ^°^l  '"'^'^   ^-^   ^-   -"  in 
l^e    ^t£  Si^nt^  cXctJrr^  ':L  '^^t^'^t^'S 

£.rK^g,;f^rjsr^^ 

French  vessels    ,t  should  appear  doubtful  wh2th  ^  the  r  So 
SreTLSl'""^  '°  ^-^^  -^^  ^°'""'^-^-  -'^•^  equipmen^wrs 

Each  case  before  the  court  must  of  course  be  examined  separately 
upon  the  facts  peculiar  to  it.  and  it  is  not  impossible  that  such  facts 
may  be  shown  as  to  some  of  the  private  armed  vessels  of  the  United 
Mates  as  justified  their  seizure  and  condemnation. 

The  vessels  whose  cases  are  now  decided  were  either  unarmed  or 
were  armed  for  strictly  defensive  purposes. 

The  jurisdictional  act  requires  us  to  inquire  into  illegal  condemna- 
.ons,  and  It  IS  urged  on  behalf  of  the  defendants  that  all  condemna- 
tjons  by  the  French  courts  are  final  and  conclusive  upon  this  court  if 
the  French  court  had  jurisdiction.  Many  citations  are  made  in  sup- 
port of  this  contention,  among  them  the  case  of  Bari„g  and  other,  v 
Ihc  Royal  Exclianse  Assurance  Company  (5  East.  99  et  seq.),  which 
may  be  taken  as  a  fair  illustration. 

The  American  ship  Rosanna.  insured  by  the  defendants,  was  cap- 
tured and  condemned  by  the  French,  whereupon  plaintiffs  sued  on 
a«ra?d"°""'-    "^'^  E"-^-"^'^-  ^-  J-  interrupting  the 

rif?rn'  "°*  !u"  f^''«"<^h]  sentence  of  condemnation  proceed  soc- 
cfically  on  the  ground  of  infraction  of  treaty  betwiln  SSerilL 


M 


II 


t-i 


334  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

and  France  in  the  ship  not  having  those  documents  with  which  in 
the  judgment  of  the  French  court  the  American  was  bound  by 
treaty  to  be  provided?  I  do  not  say  that  they  have  construed  the 
treaty  rightly ;  on  the  contrary,  suppose  them  to  have  construed 
it  ever  so  iniquitously ;  yet,  having  competent  jurisdiction  to  con- 
strue the  treaty,  and  having  professed  to  do  so,  we  [the  court] 
are  bound  by  that  comity  of  nations  which  has  always  prevailed 
amongst  civilized  states  to  give  credit  to  their  adjudication  where 
the  same  question  arises  here  upon  which  the  foreign  court  has 
decided.  After  arguing  for  hours,  we  must  come  to  the  same  con- 
clusion at  last,  that  the  French  court  has  specifically  condemned 
the  vessel  for  an  infraction  of  treaty  which  negatives  the  war- 
ranty of  neutrality.  Then,  having  distinctly  adjudged  the  vessel 
to  be  good  prize  upon  a  ground  within  their  jurisdiction,  unless 
we  denv  their  jurisdiction,  we  are  bound  to  abide  by  that  judg- 
ment Whenever  a  case  occurs  of  a  condemnation  by  a  foreign 
court  on  the  ground  of  ex  parte  ordinances  only,  without  drawing 
inferences  from  them  to  show  an  infraction  of  treaty  between  the 
nation  of  the  captors  and  captured,  and  referring  the  judgment 
of  the  court  to  the  breach  of  treaty,  I  shall  be  glad  to  hear  the 
case  argued,  whether  such  ordinances  are  to  be  considered  as 
furnishing  rules  of  presumption  only  against  the  neutrality  or  as 
positive  laws  in  themselves,  binding  other  nations  proprto  zngore. 

The  decision  of  the  English  court,  then,  goes  to  this  extent,  that  in 
an  action  between  individuals  the  decree  of  the  French  court  which 
had  jurisdiction  is  final ;  so  would  it  also  be  final  as  to  the  vessel,  and 
the  purchaser  at  the  confiscation  sale  could  rest  upon  the  decree  as 
good  title  against  all  the  world. 

But  all  this  does  not  affect  the  position  of  the  United  States  Govern- 
ment against  the  Government  of  France. 

Lord  Lllenborough  says  that  no  matter  how  iniquitous  the  construc- 
tion given  the  treaty  by  the  French  court,  he,  as  a  judge,  is  bound 
to  follow  it.  But  so  is  not  the  Government  of  the  United  States.  That 
Government  could  have  objected  either  that  the  court  was  cornipt,  or 
that  there  existed  no  treaty,  or  that  there  had  been  manifest  error 
in  construing  it.  All  such  questions  may  be  outside  the  right  of  a 
court  to  consider,  but  they  are  within  the  right  and  form  part  of  tin- 
duty  of  the  political  branch  of  the  Government.  If  the  French  court, 
acting  within  its  jurisdiction,  construed  the  treaty  iniquitously,  the 
courts  might  not  have  power  to  remedy  the  wrong,  but  the  owner  had 
a  right  to  appeal  to  his  Government  for  redress,  and  that  Government, 
when  convinced  of  the  justice  of  his  complaint,  was  bound  to  endeavor 
to  redress  it. 


CUSHINt;  V.  UNITED  STATES  335 

The  decree  is  an  estoppel  on  the  courts,  but  it  is  no  estoppel  on  the 
r^vernment;  m  fact,  the  right  to  diplomatic  interference  ad seson^y 
after  the  decree  .s  rendered.  Of  course,  precedents  for  cases  of  "  s 
ku,d  are  not  to  be  found  in  the  reports  of  courts,  for  no  such  case  Z 
ni  he  nature  of  things,  come  before  a  court  unless  by  virtue  of  a  s^^' 
ca  a«d  pecuhar  statute,  such  as  that  under  whicl/we  now  act-  bu^ 
diplomatic  history  is  full  of  them 

it.  o»„  „e„,b.rs,  „.  bound   „  s ulS      „  i>s  s^Sfc.  ^i,  ""h°  .tT 
Uw  of  nations,  ort^r  ic^L  ,  a  L  Syi^/^lt*  "■  ?= 

This  brings  us  naturally  to  another  point,  admitted  as  a  general 
pnnciple  that  appeal  should  be  prosecuted  to  the  court  of  iLt  Zrt 
before  there  can  be  diplomatic  intervention  ^ 

Washington  m  1872  not  only  unanimously  decided  that  they  had  juris- 
diction  m  pn.e  cases  in  which  the  decision  of  the  ultimate  appelate 
ri^una  of  the  United  States  had  been  had.  a  conclusi:!  ifl^h 
even  the  agents  of  the  United  States  concurred,  but  also  that  th  y 

or  thVf  ■?  '■'''"■'•  P'°"'^'^  satisfactory'  reasons  were  given 

for  the  failure  to  appeal.     (Papers  relating  ,0  the  Treaty  of  Wash 
-ngton.   vol.  6.   pp.   88-90.)      To  thi.s   last   conclusion   the    Wkan 

'ZZTr  'T""'''''''  ''"'  ""^  ''^'  »'-^  ^  misfeasance  oTr 

r    e^ted   la"'   r'  ^"^^™'^-^'  ^y  which  means  an  appeal  was 

prevented    was  sufficient  to  excuse  the  failure  to  appeal.     (Id   92) 

The  rights  of  the  prize  courts  are  the  rights  of  the  captur  ng  sf^ 

These  courts  are  its  agents,  deputed  by  it  to  examine  into  the  Conduct 


i: 


.'-■.-f.'iuj'J 


336  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  its  own  subjects  before  becoming  answerable  for  what  they  ha^T 
done  and  the  right  ends  when  their  conduct  has  been  thoroughly  ex- 
amined Therefore  the  state  has  a  right  to  require  that  the  captor  s 
acts  be  examined  in  all  the  ways  which  it  has  appointed  for  this  pur- 
pose and  on  this  principle  is  founded  the  doctrine  that  the  compla.n- 
•int  unless  he  exhaust  his  appeal,  shall  be  held  to  confess  the  justice  of 
tne  decision.  This  presupposes,  first,  that  there  are  appellate  courts: 
second,  that  they  are  open  to  the  complainant  freely  and  honestly. 
The  captor  has  no  right  to  insist  for  his  own  protection  upon  the  ful- 
fillment of  a  form  which  he  by  his  own  acts  prevents. 

There  is  also  a  distinction,  not  often  clearly  drawn,  between  the 
validity  of  a  claim  ^''.r  sc  and  the  right  to  enforcement.  The  justice  o 
the  claim  is  founded  upon  the  injustice  of  the  sentence.  The  appeal 
does  not  affect  the  merits  of  the  claim;  it  does  not  palliate  or  destroy 
any  wrong  done;  but  it  is  simply  a  course  provided  for  the  captors 
protection,  that  he  may  fully  examine  into  the  acts  of  his  own  agents. 
through  his  other  agents,  the  courts. 

The  whole  proceeding,  from  the  capture  to  the  condemnation 
is  a  compulsoo-  proceeding  in  inzntum  by  the  state  in  its  pol.t.cal 
capacity,  in  the  exercise  of  war  powers,  for  which  it  is  resix^n- 
X  a^s  a  bmlv  politic,  to  the  state  of  which  the  owner  of  the 
property  is  a  citizen.     (Dana's  Wheaton.  note.  186.) 

Therefore  the  capturing  state  may  waive  such  a  demand,  and  not 
insist  ui»n  exhausting  its  right  to  further  investigation,  and  may  waive 
it  bv  failing  to  provide  an  appellate  tribunal,  or  by  preventing  re- 
course to  it,  or  in  any  other  way  which  shows  an  intention  not  to 
insist  upon  this  right  of  examination  ;  but  appeal  or  no  appeal,  the 
validity  of  the  claim  is  founded  upon  the  injustice  to  the  clainiant>. 
A.11  writers  lay  down  the  principle  that  appeal  should  be  taken  from 
the  inferior  to  the  superior  tribunal  before  resort  by  the  injured  Gov 
emment  to  measures  of  redress;  but  this  principle  is  always  coupled 
with  the  extreme  measures  of  war  and  reprisals  (see  Rutherforth. 
cM/.ra;  Grotius,  bk.  3,  ch.  2,  §§  4.  5),  and  there  is  no  assertion  in  the 
writers  that  illegal  capture  necessarily  does  not  found  an  international 
claim  even  when  appeal  has  not  been  taken. 

It  was  notorious  that  justice  could  not  be  obtained  in  the  French 
prize  tribunals  in  existence  at  the  time  of  those  seizures.  Mr.  Picker- 
ing, writing  to  Mr.  Pinckney  in  April,  1797,  said: 


CI  >-HI\r,  V.  UNITED  STATKS 


337 


The  report  of  Mr.  Mountflcrencc.  which  yon  transmitted,  shows 
that  the  merchants  in  the  ports  of  France  wlio  constitute  the 
tribunal  of  commerce  in  which  our  captnrofl  vessels  are  tried  and, 
on  the  most  frivolous  and  shameful  pretenses,  condemned,  are 
often,  if  not  commonly,  owners  of  the  privateers  on  whose  Drizes 
they  decide.     (Doc.  102,  p.  165. j  " 

Consuls  were  at  one  time  forbidden  to  appear  liefore  the  tribunaii 
in  defense  of  absent  owners.  (Prises  Maritimes,  vol.  2,  pp.  317 
et  scq.) 

Soon  [says  tauchy],  upon  the  occasion  of  the  rupture  with  En- 
gland, the  signal  was  given  for  privateering.  The  French  gave 
to  it  all  that  could  encourage  speculations  half  mercantile,  half 
warlike;  they  put  at  the  disposition  of  the  owners  part  of  the 
sailors  of  the  fleet,  even  to  strangers  and  neutrals ;  they  opened  to 
them  the  storehouses  of  the  state ;  they  abandoned  to  the  captors 
the  total  product  of  the  captures,  and  they  joined  to  that  in  cer- 
tain cases  premiums  and  rewards.  They  did  more;  they  abolished 
with  the  offices  of  the  admiralty  the  tribunal  of  prizes,  and,  in 
order  to  find  judges  more  ready  to  sanction  captures,  they  con- 
ferred upon  the  tribunals  of  commerce  and  of  the  district  the 
judgment  of  these  matters. 

It  was  erroneously  that  they  had  represented  the  benefits  of 
privateering  as  a  source  of  riches  and  public  prosperity.  In  order 
to  make  the  fortunes  of  four  or  five  ports,  the  privateers  were  re- 
ducing the  whole  of  France,  a  country  by  nature  agricultural  and 
industrial,  so  that  she  had  neither  raw  materials  for  manufactures 
nor  supplies  for  her  navy,  nor  outlets  for  her  products,  for  they 
kept  away  from  our  ports  the  neutral  vessels  which  could  alone 
supply  the  total  absence  of  vessels  sailing  under  the  French  flag. 

On  the  other  hand,  were  not  the  relations  of  the  Republic  with 
foreign  Governments  at  the  mercy  of  simple  judges  of  com- 
merce or  of  district,  imprudently  invested  by  the  law  with  the 
terrible  right  to  put  France  in  a  state  of  war  against  the  wish  and 
knowledge  of  her  Government?  The  Directory  concluded  that 
privateering,  instead  of  receiving  more  extension  and  favor, 
ought  to  be  restrained  and  regulated  by  law. 

But  this  progress,  foreseen  under  the  Directory,  was  not  to  be 
accomplished  until  after  its  fall.  (Le  Droit  Maritime  Interna- 
tional, Eugene  Cauchy,  Paris,  1862,  vol.  2,  pp.  317,  318,  323-325.) 

The  council  of  prizes,  which  was  the  supreme  court  of  appeal 
in  prize  matters,  was  abolished  in  1793.  The  29th  Germinal,  year 
IV,  the  Council  of  Five  Hundred  passed  a  resolution  thus  ex- 
pressed: "The  appeals  from  the  tribunals  of  commerce  in  mat- 
ters of  prize  shall  be  carried  to  the  trib-mals  of  the  departments." 


338  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Carried  to  the  Council  of  the  Ancients,  this  resolution 
was  not  opptwed,  and  the  8th  Floreal,  year  IV,  it  was  converted 
into  law.    One  only  remembers  too  well  (adds  M.  Merlin)  how 
disastrous  were  the  results  of  this  strange  legislation.    The  tribu- 
nals paid  no  attention  in  their  decrees  to  the  relation  of  France 
with  foreign  powers,  whence  arose  numerous  and  pressing  claims. 
However,  to  palliate  the  political  inconvenience  that  might  flow 
from  thus  vesting  ordinary  tribunals  with  the  cognizance  of  mari- 
time prizes,  it  was  thought  sufficient  to  authorize  the  commissaries 
near  the  civil  tribunals  to  refer  to  the  Government  those  matters 
which  necessitated  the  interpretation  of  treaties,  and  in  winch 
the  judgments  of  the  tribunals  might  compromise  the  rights  of  a 
friendly  or  neutral  power;  but  experience  was  not  long  m  dem- 
onstrating that  this  palliation  was  a  vain  remedy,  and  that  tlic- 
legislation  ought  to  be  deeply  modified,  the  tribunals  havmg  shown 
the  greatest  hostility  against  the  measure,  some  determming  m 
spite  of  it  the  caus«  which  the  commissaries  had  referred  tr>  the 
Executive  Directory;  others  denying  to  the  commissaries  of  the 
Government  the  right  to  judge  alone  of  the  propriety  or  necessity 
of  the  reference.    Matters  had  come  to  such  a  point  that  m  the 
y«ar  VIII  the  minister  of  justice,  Cambacercs.  being  instructe*! 
by  the  Consuls  as  to  the  amendments  to  be  made  to  the  legislation 
as  to  prizes,  was  authorized  to  say  "that  privateering  had  become 
a  system  of  brigandage,  because  the  laws  which  had  been  applieJ 
to  it  were  insufficient  and  bad;  that  they  had  heard  complaints 
raised  in  all  directions  by  merchants  and  foreign  ministers,  and 
that  nevertheless  the  Government,  convinced  of  the  justice  of  these 
complaints,    had    always    been    without    power    to    do    nRht/' 
(Traiti  des  Prises  marilimes,  par  Pistoye  ct  Duverdy.  Paris,  1858. 
vol.  2,  pp.  157.  158.) 

The  form  and  expense  of  appeal  were  useless,  for  it  was  not  denied 
that  the  adjudications  below  were  in  accordance  wth  French  ordi- 
nances, while  it  was  contended  that  they  were  in  violation  of  the  riphts 
of  neutrals,  measured  either  by  treat>'  provision  or  by  the  precepts  of 
the  law  of  nations.  Municipal  law  is  not  a  measure  of  inteniational 
reponsibility.  but  it  is  binding  within  the  jurisdiction  of  the  state  u|>on 
all  its  subordinate  agents,  including  the  courts  The  decree  in  one  of 
the  cases  before  us,  which  was  appealed  to  the  civil  tribunal,  shows  tlie 
following  as  the  grounds  for  affirming  the  rnndemnation  below : 

The  trilrtinal  .  .  .  considering  the  niles  of  170».  ir44. 
1778.  prior  as  well  as  subsequent  to  the  treaty  between  Frame 
and  the  United  States  of  America,  emph.itically  (leniand  that  .i" 


GUSHING  V.  UNITED  STATES 


339 


foreign  ships  shall  be  furnished  with  a  role,  authenticated  by  the 
public  officers  of  the  neutral  port  whence  they  have  set  out,  under 
pain  of  being  good  prize.  Considering  that  the  execution  of 
these  regulations  has  l)een  ordered  by  article  5  of  the  law  of  the 
14th  of  February,  1793;  considering  that  a  ship,  which  can  not  be 
reputed  neutral  on  account  of  a  lack  of  papers  sufficient  to  prove 
its  neutrality,  can  not  be  regarded  but  as  an  enemy,  and,  being  so, 
its  cargo  is  to  be  confiscated,  accordiii^r  to  the  terms  of  article  7 
of  the  ordinance  of  the  marine  of  U)81— title  prize— says  that  it 
has  been  well  judged  by  the  judgment  wiiich  has  been  appealed 
from,  and  orders  that  it  shall  have  its  full  and  entire  effect. 

So  it  appears  that  questions  of  treaty  or  international  law  were  not 
ruled  upon,  the  court  being  guided  alone  by  the  statutes  of  France. 
In  the  face  of  precedents  of  this  kind  an  appeal  was  a  vain  and  ex- 
pensive form,  as  an  affirmation  of  the  judgment  below  necessarily 
must  follow.  The  cases  were  class  cases,  the  OMidemnations  (so  far 
as  we  have  yet  seen)  proceeded  upon  substantially  the  same  grounds, 
and  one  a"'>eal  was  decisive  of  ail  similar  cases.  The  state's  right  of 
investigat  had  therefore,  in  effect,  been  satisfied  when  it  had  af- 
firmed in  one  case  the  legal  principles  applicable  to  many  others  pre- 
senting the  same  facts. 

There  were  appeals  also  to  the  court  of  cassation,  which  were  de- 
cided adversely  to  the  claimant— necessarily  so  decided  when  the  char- 
acter and  duty  of  the  court  are  understocnl. 

When  the  jurisdiction  of  the  court  of  cassation  is  invoked  there 
must  take  place  a  preliminary  argument  to  determine  whether  the 
court  under  the  particular  facts  of  the  case  has  or  has  not  jurisdiction. 
This  settled  in  the  affirmative  by  one  of  the  divisions  of  the  court 
known  a"  the  chamber  of  requests,  the  cause  is  referred  either  to  the 
chamberr  of  civil  causes,  or  to  the  chamber  of  criminal  cau.ses.  and 
the  jurisdiction  of  these  chambers  is  simply  to  >i>cure  uniformity  in  the 
construction  of  the  st.ntutcs.    Merlin  says; 

.\s  resource  to  the  ca-sation  is  only  an  extreme  remedy  which 
has  no  other  object  than  the  maintenance  of  the  lojrislative  au- 
thority and  of  the  ordinances,  it  ran  not  l)e  made  use  of  under 
tlic  simple  pretext  that  a  case  has  been  ill-judged  in  the  main. 


Tlie..|»ini«.n  ,if  the  c miuil  ..f  state,  (i.it.-,!  Jann.try  18,  1806.  speaking 
of  the  court  of  ca>^salion,  >iavs; 


H'  ' 


340  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

If  the  forms  have  been  violated  [below]  there  is  no  judgment, 
properly  speaking,  and  the  court  of  cassation  destroys  an  irregu- 
lar decree.  If,  on  the  contrary,  all  the  forms  have  been  observed, 
the  judgment  is  reputed  to  be  truth  itself.  .  .  .  If,  then, 
a  decree  should  be  in  formal  opposition  to  a  written  provision  of 
the  law,  the  presumption  of  its  justice  disappears,  for  the  law  i- 
and  ought  to  be  the  justice  of  the  tribunals;  wherefore  the  court 
of  cassation  has  the  right  to  annul  in  this  case  the  decrees  of  the 
courts.     (See  Merlin,  Ripertoire.     .     .     .     de  Jurisprudence.) 

What,  then,  could  be  the  object  of  an  appeal  to  the  court  of  cassa- 
tion when  the  court  below  had  not  misinterpreted  the  French  law, 
especially  as  such  an  appeal  would  in  no  event  have  suspended  the 
execution  of  the  judgment?  (Code,  art.  16,  title.  Courts  and  tribunal?- 
( 1790),  Tripier's  edition,  1865.) 

The  condition  of  affairs  in  regard  to  French  courts  is  well  illustrate.! 
fty  the  letter  from  Pinckney,  Marshall,  and  Gerry  to  the  Secretary 
of  State  (October  22,  1797,  Doc.  102,  p.  467),  wherein  they  quote 
their  advocate  as  saying:  "It  is  obvious  that  the  tribunal  have  re- 
ceived instructions  from  the  officers  of  the  Ciovcmment  to  hasten 
their  decisions,  and  that  it  was  hardly  worth  while  to  plead,  for  all  our 
petitions  in  cassation  would  be  rejected." 

In  the  colonies  matters  were  still  worse  than  in  France  (Tuck's  Re- 
i>ort,  and  citations  therein,  H.  R.  E.x.  Doc.  194,  49th  Cong.,  1st  ^ess.  i 
and  appeals  were  much  more  difficult.  After  the  decision  of  a  court, 
organized  in  some  instances  for  the  purpose  of  condemnation,  by  an 
officer  of  the  Government,  himself  interested  in  privateers,  or  in  some 
instances  after  a  decision  by  that  officer  in  person  (id.,  p.  9),  the  only 
remedy  was  to  obtain  an  appeal  to  the  mother  country.  This  troiihle 
and  expense  were  practically  useless  (see  in  this  relation  Skipwith  to 
Berlier,  Doc.  102.  pp.  833,  834).  Communication  lietween  Franco  and 
the  colonies  was  difficult:  the  masters  of  the  seized  vessels  were  iioor 
and  were  often  stripped  by  the  privateers  of  what  little  they  had. 

The  condition  of  French  prize  tribunals  was  sn  notorious  as  to  raiisf 
a  change  in  admiralty  law,  the  rt-as^ns  for  which  were  thus  exprc>;vc(! 
bv  Ijord  Stowell : 


It  has  certainly  been  the  practice  of  this  court,  lately,  to  arrant 
salvage  on  recapture  of  neutral  property  out  of  the  han(U  of  tlie 
French,  and  I  see  no  reason  af  the  present  moment  to  depart  from 
it.    I  know  t)erfectlv  well  that  it  is  not  the  nuKlern  i>rartii-c  of  ilif 


GUSHING  V.  UNITED  STATES 


341 


law  of  nations  to  grant  salvage  on  recapture  of  neutral  vessels, 
and  upon  this  plain  principle,  that  the  liberation  of  a  clear  neu- 
tral from  the  hand  of  the  enemy  is  no  essential  service  rendered 
to  him,  inasmuch  as  that  same  enemy  would  be  compelled  by  the 
tnbunals  of  his  own  country,  after  he  had  carried  the  neutral  into 
port,  to  release  him,  with  costs  and  damages  for  the  injurious 
seizure  and  detention.  This  proceeds  upon  the  supposition  that 
those  tnbunals  would  duly  respect  the  obligations  of  the  law  of 
nations ;  a  presumption  which,  in  the  wars  of  civilized  nations, 
each  belligerent  is  bound  to  entertain  in  their  respective  dealings 
with  neutrals.  But  it  being  notorious  to  all  Europe,  in  the  present 
war,  that  there  has  been  a  constant  struggle  maintained  between 
the  governing  powers  of  France,  for  the  time  being,  and  its  mari- 
time tnbunals,  which  should  most  outrage  the  rights  of  neutral 
property— the  one  by  its  decrees,  or  the  other  by  its  decisions— 
the  liberation  of  neutral  property  out  of  their  possession  has  been 
deemed,  not  only  in  the  judgment  of  our  courts,  but  in  that  of 
neutrals  themselves,  a  most  substantial  beiiefit  conferred  upon 
them,  in  a  delivery  from  danger  against  which  no  clearness  and 
innocence  of  conduct  could  afford  any  protection.  And  a  salvage 
for  such  service  has  not  only  been  decreed,  but  thankfully  paid, 
ever  since  these  wild  hostilities  have  been  declared  and  prac- 
ticed by  France,  against  all  acknowledged  principles  of  the  law 
of  nations  and  of  natural  justice.  When  these  lawless  and  ir- 
regular practices  are  shown  to  have  ceased,  the  rule  of  paying  sal- 
vage for  the  liberation  of  neutral  property  must  cease  likewise. 
No  proof  is  offered  that  the  maritime  tribunals  of  France 
have,  in  any  degree,  corrected  either  the  spirit  or  the  form  of  their 
proceedings  respecting  neutral  property  generally ;  and.  therefore, 
I  shall  not  think  myself  authorized  to  depart  from  the  practice 
that  has  been  pursued,  of  awarding  a  salvage  to  the  captors  ( The 
Owtflfi,  2  Robinson,  300.  301.) 

And  later  he  said: 


It  is  certainly  true  that  the  standing  doctrine  of  the  court  has 
been  that  neutral  proiJWty.  taken  out  of  the  jKjsscssion  of  the 
enemy,  is  not  liable  to  salvage.  It  is  the  doctrine  to  which  the 
court  has  invariably  adhered  till  it  was  forced  out  of  its  course 
by  the  notorious  irregularities  of  the  French  crui.sers  and  of  the 
French  Government,  which  proceeded,  without  any  pretense  of 
»9'.ction  from  the  law  of  nations,  to  condemn  neutral  property. 
On  these  grounds  it  was  deemed  not  unreasonable  by  neutrals 
Uiemselves  that  salvage  should  be  paid  for  a  deliverance  from 
French  capture.  The  rule  obtained  earlv  in  the  war,  and  has 
continued  to  the  present  time.     It  is  said'  that  a  great  alteration 


,r 


342 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


has  taken  place  in  ihe  French  proceedings,  and  that  we  are  now 
to  acknowledge  a  sort  of  return  of  "Saturnia  Regna."  This 
court  is  not  informed,  in  a  satisfactory  manner,  that  aiiy  such 
■jeneficial  change  has  taken  place  in  the  administration  of  prize 
law  in  the  tribunals  of  France;  and,  therefore,  it  will  continue 
to  make  the  -.ame  decree  till  the  instructions  of  the  superior  court 
shall  establ.sn  a  different  rule.    (Eleonora  Catkarina,  4  Rob.  157.) 

It  is  important  to  note  that  during  the  period  of  these  seizures  neither 
the  Government  of  the  United  States,  which  consistently  supported 
the  claimants'  contentions,  nor  the  Government  of  France,  from  whom 
we  were  demanding  redress,  indicated  the  necessity  of  the  form  of 
appeal,  nor  later  did  the  French,  even  in  the  long  negotiations  in  which 
the  validity  of  these  claims  was  a  principal  subject  of  discussion, 
intimate  in  any  way  tha*  they  considered  the  appeal  of  importance  or 
that  they  leqi.  ired  it. 

We  conclude,  therefore,  that  under  these  exceptional  circumstances 
a  claim  properly  founded  in  law  is  not  excluded  from  our  jurisdiction 
because  the  supposed  remedy  by  appeal  was  not  exhausted,  and  this 
we  'lold  upon  two  principal  grounds :  First,  that  by  the  action  of  the 
French  Government  such  an  appeal  was  useless  or  impracticatili  ; 
second,  that  as  betweeti  the  United  States  and  France  such  an  apiieal 
as  a  condition  precedent  to  recover}'  was  in  effect  waived. 

The  decree  condemning  the  Industry  proceeds  upon  the  theory  that 
the  vessel's  rule  d'cquipage  was  not  in  the  form  said  to  be  required 
hy  article  25  of  t'le  treaty  of  February  6.  1778.  and  also  said  to  be  re 
quired  by  certain  French  decrees  declaring  to  be  good  and  lawful 
prize  every  American  vessel  not  having  a  role  in  a  form  prescribed. 
Collofiuially  a  role  d'cquipa<ic  is  usually  treated  as  a  crew  list. 
whereas  in  French  law  it  is  a  more  formal  {aper,  with  more  cxteiided 
requirements. 

To  the  fir'-t  of  the  prn|)ositions  contained  in  the  court's  deem-  a 
very  clear  answer  is  found  in  the  fact  that  the  treaty  does  not  tleniaml, 
as  we  have  already  deci(le<l.  that  a  crew  list  of  any  kind  l)o  carried 
on  the  vessel.  Article  25  of  tliat  instrttt.irnt  calls  for  a  "letter  nr 
passjxjrt  expressing  the  name,  propertv.  and  bulk  of  the  nlip.  as  al-n 
the  name  awl  place  of  hjihitation  of  the  master  or  commander  of  the 
said  ship,  that  it  may  api>ear  therehv  that  the  ship  really  and  tntly 
belongs  to  the  subjects  of  one  of  the  parties;"  this  passport  to  follow 
a  form  annexe<l  to  the  treatv.     The  ship  was  also  to  have  a  certifitMtf 


GUSHING  V.  UNITED  STATES 


343 


as  to  cargo,  showing  she  was  not  carrying  contraband ;  but  this  certifi- 
cate is  not  brought  in  question  in  these  cases.  The  treaty  therefore 
required  two  documents :  First,  a  passport ;  second,  a  certificate  as  to 
cargo.    The  form  of  passport  annexed  to  the  treaty  runs  as  follows: 

The  name  of  the  master  and  the  name,  hailing  port,  and  ton- 
nage of  the  vessel  are  given,  together  with  the  name  of  the  port 
in  which  she  is  lying,  as  well  as  that  of  the  port  to  which  she  is 
bound ;  the  general  nature  of  her  cargo  is  described,  and  it  is  made 
known  and  certified  that  permission  has  been  given  the  master 
to  proceed  after  he  shall  make  oath  that  the  vessel  belongs  to  one 
or  more  American  citizens. 

Up  to  this  point,  therefore,  the  passport's  requirement  is  a  descrip- 
tion of  the  vessel  and  cargo,  with  the  name  of  the  master  and  a  sworn 
statement  as  to  the  citizenship  of  the  owners.  Up  to  this  point  also 
the  document  follows  exactly  article  25  of  the  treaty,  contains  every- 
thing demanded  by  that  article,  and  we  are  informed  that  it  was  the 
custom  of  the  United  States  in  the  English  version  of  tlie  passport 
to  halt  at  this  point,  while  the  ver.sions  in  foreign  languages  contained 
the  concluding  portion,  which  we  are  now  about  to  consider.  (See 
original  sea-letter  of  the  Zebra;  claim  allowed  under  treaty  of  1831 ; 
original  MSS.  Department  of  .State.) 

The  master  'will,"  it  says  further,  keep  the  marine  ordinances  on 
board,  in  every  port  he  "shall"  show  his  sea-letter,  "shall"  give  a 
faithful  account  of  his  voyage,  and  "shall"  carry  the  colors  of  his 
country;  and  he  shall  (or  will)  enter  in  the  proper  office  (remettra) 
what: — "a  list,  signed  and  vtnessed,  containing  the  names  and  sur- 
names, the  places  of  birth  and  abode  of  the  crew  of  his  ship  and  of  all 
who  shall  embark  on  board  her,  whom  he  shall  not  take  on  board 
without  the  knowledge  and  permission  of  the  officers  of  the  marine." 

There  is  no  requirement  h're  that  the  ma-^ter  shall  carry  on  his 
vessel  the  document  described,  he  it  role  d'cquipage  or  crew  list.  The 
<lemand  of  this  clause  is  that  such  a  document  be  deposited  or  filed 
iremis^  in  a  proper  place,  and  whtthcr  tliis  be  done  before  or  after 
ti'e  pas'sport  issue  is  not  material.  Thai  in';tmment  simply  declares 
that  such  a  list  has  been,  or  at  least  will  he,  l)efore  sailing  properly 
file*!,  not  carried.  (Doc.  102.  pp.  467  am!  .'^64;  2  Prises  Maritimes 
S.^.) 

The  provision  of  Article  IX  of  the  treaty  of   1788,  relating  as  it 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


does  to  consular  rights  in  the  arrest  of  deserting  seamen,  has  no  bear- 
ing upon  this  question.  A  semi-extraterritorial  power  is  by  that  in- 
strument given  to  French  consular  officers,  and  a  way  strictly  marked 
out  in  which  they  shall  pursue  it ;  to  arrest  a  deserter  they  must  show 
him  to  be  part  of  the  vessel's  crew,  and  this  they  must  do  by  exhibiting 
"the  registers  of  the  vessel  or  ship's  roll."  This  is  a  specific  agreement 
relating  to  a  specific  subject,  and  has  no  reference  to  condemnations. 

The  Industry  was  not  condemned  because  the  crew  list  had  not 
been  filed  in  the  home  port,  but  because  the  role  d'equipage  was  not 
in  form.  The  careful  study  and  patient  research  of  Government  coun- 
sel have  failed  to  develop  any  treaty  requirement  that  such  a  docu- 
ment be  carried  on  board  the  vessel,  while  the  United  States  Govern- 
ment constantly  and  most  peremptorily  insisted  that  during  all  the 
period  now  under  discussion  the  French  demand  was  illegal  and  unau- 
thorized by  treaty  or  other  law.  The  Pinckney  mission  told  M.  Bel- 
lamy in  October,  1787  (Doc.  102,  pp.  466,  467),  that  none  of  our  ves- 
sels had  such  a  role;  and  that  if  they  were  to  surrender  the  property 
taken  from  their  fellow-citizens  in  cases  where  the  vessel  was  not  fur- 
nished with  such  a  role  the  United  States  would  become  responsible 
for  the  property  so  surrendered,  as  "it  would  be  impossible  to  under- 
take to  assert  that  there  was  any  plausibility  in  the  allegation  that  our 
treaty  required  a  role  d'equipage." 

Pickering's  interesting  instructions  to  the  Ellsworth  mission,  dated 
October  22,  1799  (Doc.  102,  p.  .S61),  contain  a  very  definite  state- 
ment of  the  position  of  the  Government  on  this  subject.  He  lays 
down  as — 


an  indispensable  condition  of  the  (proposed]  treaty  a  stipula- 
tion to  make  to  the  citizens  of  the  United  States  full  com[K-n>a- 
tion  for  all  losses  and  damages  which  they  shall  have  sustaiiicd 
by  reason  of  irregular  or  illegal  captures  or  condemnations  of 
their  vessels  and  other  property.  And  all  captures  and  conileniii.i- 
tions  are  deemed  irregular  or  illegal  when  contrary  to  the  law  of 
nations  generally  received  and  acknowledged  in  Europe,  and  to 
the  stipulations  in  the  treaty  of  amity  and  commerce  of  the  6th 
of  February,  1778,  fairly  and  ingenuously  interpreted  while  that 
treaty  remained  in  force.  es|)cvially  when  made  and  pmnouncid: 

(1)  Because  the  vessel's  lading,  or  any  part  thereof,  con.sisted 
of  provisions  or  merchandise  coming  from  England  or  her  |x>s- 
sessions. 

(2)  Because   the   vessels    were   not    provided   with    the   roles 


GUSHING  V.  UNITED  STATES 


345 


d'equipage  prescribed  by  the  laws  of  France,  and  which  it  has 
been  pretended  were  also  required  by  treaty. 

(3)  Because  sea-letters  or  other  papers  were  wanting,  or  said 
to  be  wanting,  when  the  property  shall  have  been,  or  shall  be  ad- 
nutted  or  proved  to  be  American.  Such  defect  of  papers,  though 
It  might  justify  the  captors  and  exempt  them  from  damages  for 
bringing  in  such  vessels  for  examination,  could  not  with  reason 
be  a  ground  of  condemnation. 

Further  on  in  the  instruction  Mr.  Pickering  says : 

(  'fhere  never  was  indeed,  any  intimation  on  the  part  of  France 
from  1778.  when  Uie  treaty  of  amity  and  comme^e  was  made! 
until  the  passing  of  the  decree  of  the  Directory,  in  March  1797 
that  a  role  d'equipage,  other  than  the  ship's  S  or  the  shipping 
papers  [see  act  1790],  would  be  required.*^  It  was  then  suffiy 
demanded,  and  the  decree  .  .  .  was  instantly  enforced  and 
became  a  snare  to  the  multitudes  of  American  vessels,  whi^  for 
want  of  previous  notice,  would  not  have  on  board  the  document 
in  question  ,f  their  Government  should  permit  them  to  receK-e 
a  document  which  they  were  under  no  obligation  to  prx)duce  For 
It  can  not  with  any  semblance  of  justice  be  pretended  that  the 
vessels  of  one  nation  are  bound  to  furnish  themselves  with  paper, 
he  ^re'^tv^^^'irrl*^  by  the  laws  of  another.  And  if  we  resort  to 
the  treaty  of  1778,  or  to  the  sea-letter  or  passport  annexed  to  it 
on  which  letter  the  Directory  pretended  to  found  "herd^Se^n: 
?r!Tf  A  !'''^<'.^'''7«'Mff«^.  we  shall  see  that  these  words  are  not 
to  be  found  in  either.    (Id.  564.) 

For  the  purpose  of  argument,  however,  we  may  for  the  moment 
admit  the  French  contention  in  this  matter-a  contention  now  adopted 
hy  the  defense-and  concede  that,  by  relation  back  through  the  pass- 
port to  the  twenty-fifth  article  of  the  treaty  of  1878.  it  became  the  duty 
of  the  vessel's  master  not  to  file  a  crew  list  at  the  port  of  departure 
but  to  carry  on  his  vessel  a  role  d'iquipage  drawn  and  certified  in 
accordance  with  the  ordinances  and  decrees  of  France,  and  not  neccs- 
sanly  in  accordance  with  the  statutes  of  the  United  States,  to  which 
ermntry  Ins  vessel  belonged  and  of  which  country  he  was  a  citizen 

The  iK>sition  being  admitted,  we  must  consider  the  amount  of  pen- 
ary which  the  vessel  is  to  suflfer  if  such  a  role  be  lacking.  What  pen- 
alty <loes  the  treaty  impose?  That  instniment  says  nothing  about  a 
rol^  or  crew  list,  but  demands  a  pa.ssport.  which  latter  document  it 
1^  urged  requires  the  presence  of  a  role  on  the  vessel;  the  treaty  pen- 


346  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

alty  therefore,  for  the  lack  of  this  role,  not  mentioned  in  the  body 
of  the  instrument,  can  not  be  greater  than  the  penalty  for  the  lack  of 
the  passport  which  is  there  mentioned.     The  object  of  the  passport 
provision  is  deariy  to  be  gathered  from  the  wording  of  the  treaty: 
"To  the  end  that  all  manner  of  dissensions  and  quarrels  may  be 
avoided  and  prevented,"  the  twenty-fifth  article,  it  is  provided  that 
when  either  party  is  at  war  the  vessels  of  the  other  shall  be  furnished 
with  passports  describing  the  name,  property,  and  bulk  of  the  ship, 
together  with  the  name  and  abode  of  the  master,  so  that  it  may  appear 
that  the  vessel  "really  and  truly  belongs  to  the  subjects  of  one  of  the 
parties"    Such  is  the  substance  of  the  twenty-fifth  article,  whose  ob- 
ject as  clearly  expressed  is  not  to  affix  penalties,  but  to  avoid  "dissen- 
sions and  quarrds."  .■      , 
The  twenty-seventh  article  provides,  that  if  a  merchant  ship  of 
either  party  meet  a  man-of-war  or  privateer  of  the  other,  the  armed 
ship,  "for  the  avoiding  of  any  disorder,"  shall  remain  out  of  cannon- 
shot'  send  boats  to  the  merchantman;  put  no  more  than  two  or  three 
men' on  board,  to  whom  the  master  shall  show  hds  passport;  having 
done  which  he  may  pursue  his  voyage,  and  the  vessel  may  not  be 
molested  or  searched  in  any  manner,  nor  chased,  nor  forced  out  of 
her  course.    The  passport,  then,  being  given  for  the  purpose  of  pre- 
venting "dissensions  and  quarrels."  is  by  virtue  of  its  presence  alone 
to  free  the  ship  from  seaix:h,  chase,  or  forced  deviation.     No  penalty 
is  affixed  for  the  lack  of  this  passport  other  than  what  may  be  in- 
ferred as.  for  example,  that  without  it  she  would  be  liable  to  detention 
and  search,  and  possibly  to  investigation  by  a  prize  court  or  other 
competent  tribunal  as  to  the  honesty  of  her  character  and  the  inno- 
cence of  her  voyage.                                                              .  ^  •    , 

Vo  treaty  penalty  being  affixed  for  the  absence  of  a  definitely  pre- 
scribed document,  how  can  one  be  held  to  exist  for  the  absence  of  a 
subsidiary  document  which  the  treaty  does  not  require  the  master  to 
exhibit  even  if  its  presence  on  board  be  necessary?  An  Amencan 
vessel  boarded  by  a  French  officer  need  only,  so  says  article  27.  do  one 
thing,  need  only  show  one  paper,  to  wit.  his  passport;  this  done,  lie 
may  immediately  proceed. 

No  rule  of  international  law  has  been  called  to  our  attention,  and 
non.  IS  known  to  us.  which,  in  the  absence  of  specific  agreement  to  the 
contrary,  requires  the  presence  on  vessels  of  any  particular  document. 
Some  papers  undoubtedly  should  be  carried  for  protection:  that  is. 


GUSHING  V.  UNITED  STATES 


347 


carried  for  the  benefit  of  the  ship,  to  divert  suspicion,  to  avoid  deten- 
tion and  delay,  and  to  afford  at  least  prima  facie  proof  that  she  is 
what  she  pretends  to  be,  an  innocent  vessel  engaged  in  legitimate  busi- 
ness. The  nature  and  character  of  ships'  papers  is,  however,  usually 
a  matter  of  munidpal  regulation  to  which  foreign  vessels  must  con- 
form or  incur  certain  reasonable  penalties,  enforceable  within  the  terri- 
torial jurisdiction  of  the  enacting  Government.  Many  examples  of 
municipal  acts  of  this  nature  may  be  found  in  our  own  statute  books. 
Speaking,  generally,  however,  aside  from  local  regulations  not  en- 
forceable by  the  Government  of  one  nation  over  the  vessels  of  an- 
other on  the  high  seas,  the  class  and  kind  of  papers  to  be  carried  by  a 
merchantman  are  prescribed  by  his  own  Government,  and  as  between 
him  and  a  foreign  vessel  of  war  these  papers  are  prima  facie  proof  of 
innocence  and  honesty ;  but  as  they  are  not  conclusive  on  these  points, 
so  is  dieir  absence  no  more  than  the  foundation  of  a  reasonable  sus- 
picion deserving  inquiry  into  the  true  character  of  the  vessel  and 
voyage.     (See.  also.  Merlin,  2  Prises  Maritimes.  51.) 

It  is  of  the  highest  importance  [says  Ortolan]  that  a  vessel  be 
in  position  to  prove  her  nationality.  The  flag  is  the  distinctive 
evident  sign  of  the  vessel's  national  character.  Every  state  has 
its  particular  colors  under  which  its  citizens  sail.  .  .  . 
But  this  distinctive  sign  can  not  be  the  only  one,  for  if  it  were  it 
would  be  easy  to  disguise  the  nationality  of  a  vessel.  Therefore, 
to  provide  clear  proof  of  this  nationality,  ships'  papers  or  sea- 
letters  are  required,  with  which  every  merchantman  should  be 
provided.  The  number,  nature,  and  form  of  these  papers  arc 
regulated  by  the  law  of  each  countrj-,  usually  through  the  pro- 
visions of  codes  of  maritime  commerce.  (Rt^lcs  inlernationales 
et  Diplomatic  dc  la  Mer.    Ortolan,  vol.  1,  p.  174.) 

The  right  to  visit  [says  Hautefeuille]  must  be  confined  to  an 
ascertainment  through  examination  of  official  papers  of  the  na- 
tionality of  the  vessel  met,  and  also  in  case  she  is  bound  to  an 
enemy's  port,  whether  faithful  to  her  duty  she  carries  no  arms 
or  munitions  of  war :  that  is.  that  she  is  not  guilty  of  interference 
in  the  hostilities.  These  two  single  points  ascertained,  and  that 
only  by  documents  coming  from  the  neutral  sovereign,  or  his 
delegates,  the  cruiser  should  retire  and  allow  the  vessel,  now 
recognized  as  neutral,  to  continue  her  voyage.  (Hautefeuille.  vol. 
3,  p.  428:  Parsons,  Shipping,  vol.  2,  pjv  47.'<-477.) 

The  lack  of  a  particular  ship's  paper  may  be  punishable  under  cer- 
tain circumstances  within  local   iurisdirlion  as  .t  police  measure,  but 


348 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


I'.* 


!'  m 


\t  'I 


,  1 

' 

:| 

/^ 

never,  so  far  as  we  know,  by  absolute  confiscation  when  it  is  shown 
that  the  vessel  is  innocently  pursuing  a  legitimate  voyage.  An  acci- 
dent is  easily  supposable  by  which,  after  leaving  port,  and  while  on 
the  high  seas,  all  the  papers  of  a  ship  may  by  fire  or  water  be  destroyed. 
On  that  account  is  she  to  be  confiscated?  We  know  of  no  rule  of  law, 
municipal  or  international,  which  would  authorize  such  a  course. 

The  Industry,  it  is  said,  did  not  have  a  proper  role  •  equipage. 
The  treaty  did  not  require  any,  or,  if  it  did,  then  it  punished  the  iack 
of  the  role  by  detention,  search,  and  inconvenience  only.  The  crew  list 
is  a  paper  usually  carried  on  a  merchant  vessel,  but  its  absence  is  not, 
by  international  law,  punishable  by  confiscation. 

After  all  the  discussion  between  the  two  Governments  in  regard  to 
the  role  d'equipage,  we  find  in  article  4  ot  the  treaty  of  1800  provision 
for  a  passport  identical  in  form  with  that  of  1778,  which  could  only 
have  been  so  therein  inserted  because  both  Governments  had  agreed 
upon  what  had  always  been  contended  for  by  the  United  States,  and 
finally  admitted  by  France,  that  this  form  imposed  upon  the  ship- 
master no  obligation  to  carry  on  board  his  vessel  the  document  tech- 
nically known  to  the  French  law  as  a  role  d'equiPage. 

That   France   came  openly   to  this  position   is  shown  by   various 


cases. 


In  the  case  of  the  Louise  (13  Thermidor.  year  IX)  the  council  of 
prizes  decided  that  the  laws  of  France  relative  to  roles  d'equipage 
should  not  be  applied  to  foreign  ships,  it  being  sufficient  that  their 
roles  conformed  to  the  laws  of  their  own  country.  (Traite  des  PrLw 
maritimes,  Pistove  et  Duverdy,  vol.  1,  p.  484.) 

In  the  cases  of  the  Elizabeth  (17  Pluviose,  year  VII)  and  of  I.es 
Deux  Amis  (3  Messidor,  year  VIII)  it  was  held  that  even  a  failure  to 
produce  a  proper  passport  or  sea-letter  did  not  warrant  condemnation 
if  the  neutrality  of  the  ve-ssel  sufficiently  appeared  from  other  papers 
or  indicia  on  hoard.     (Id.,  pp.  439.  479.) 

The  commissioner  of  the  French  Government  very  thoroughly  pre- 
sented this  whole  question  in  the  case  of  the  Pes;ou,  on  trial  before  the 
council  of  prizes.  (Traiti  des  Prises  maritimes,  Pistove  et  Duvonly, 
vol.  2,  pp.  51  et  seq.) 

Among  other  things,  he  said  that  certainly  the  regulations  of  1"44 
and  1778  and  the  orders  of  the  Directory  required  a  role  d'equipdqc. 
certified  by  public  officers  at  the  port  of  departure.  Certainly,  also, 
the  role  d'equipage  is  not  set  forth  in  the  treaty  of  1778  as  amone 


GUSHING  V.  UNlTKn  STATES 


349 


the  documents  required  to  show  neutrahty.  Whether  the  treaty  or  the 
French  decrees  should  prevail  he  does  not  decide,  but  starting  with 
the  principle  that  all  questions  of  neutrality  are  questions  of  good 
faith,  in  which  actual  facts,  not  simply  appearances,  must  be  examined, 
he  holds  that  the  absence  of  a  required  document  or  an  irregularity 
in  form  does  not  authorize  condemnation  as  prize.  The  truth  must 
be  sought,  and  that  not  by  technical  forms;  simply  omissions  or  ir- 
regularities should  never  obscure  the  truth  if  it  be  otherwise  proved. 
The  essential  question  is,  whether  the  ship  is  or  is  not  in  fact  neutral. 
It  is  not  of  importance  that  legislators  have  thought  it  their  duty  to 
require  the  presentation  of  particular  papers;  the  severity  of  the  legis- 
lators is  always  subordinate  to  the  surrounding  circumstances  which 
alone  lead  to  conv."  .ion.  The  neutrality  should  be  proved,  but  this 
tray  be  done  notwithstanding  the  omission  or  irregularity  of  certain 
forms.  On  the  other  hand,  fraud  may  be  uncovered  though  sought  to 
be  concealed  under  deceiving  appearance.  All  thorns  and  all  subtle- 
ties of  law  must  be  thrown  aside  "i7  faut  proceder  par  honne  et  mure 
deliberation  et  y  rcrjardcr  par  la  conscience."  And  the  court  fol- 
lowed his  advice  thus  officially  given. 

We  are  irresistibly  forced  to  the  conclusion  that  a  condemnati'  n 
based  simply  on  the  absence  of  a  role  d'equipage  or  upon  its  informal- 
ity was  illegal. 

We  do  not,  however,  hold  that  the  absence  or  informality  of  a  ship's 
paper  may  not  create  a  suspicion  calling  for  explanation,  or  that  its 
absence  or  informality  may  not.  in  connection  with  other  evidence. 
give  good  ground  for  investigation  -^nd  suitable  punishment.  The 
cases  now  before  us  do  not  present  this  issue.  In  the  case  of  the 
Industry,  Benjamin  Hawkes.  master,  for  example,  there  is  no  al- 
legation in  the  decree  of  the  tribunal,  nor  is  there  anything  in  the 
proceedings  tending  to  show  that  she  was  not  what  she  pretended  to 
be,  an  American  vessel  owned  by  citizens  of  the  United  States  hon- 
estly pursuing  a  legitimate  and  peaceful  voyage.  The  grounds  oif  con- 
demnation were  solely  that  the  role  d'dquipage  which  the  vessel  had 
ofi  Ixiard  was  not  in  form,  being  signed  only  by  one  notarj-  pi.blic 
"without  the  confirmation  of  witnesses,"  and  there  beintr  writt.  ,  on 
the  back  of  .said  role  an  unsigned  certificate  that  a  role  d'cquxfage 
was  not  necessary. 

It  will  probably  become  important  to  consider  in  the  future  the 
proposition  of  the  defense  that  the  captured  vessel  is  required  to  prove 


f  ft 


n ' 


350  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

her  innocence— that  is,  that  the  onus  probandi  rests  upon  her  in  prize 
proceedings.  In  this  case,  however,  there  is  no  allegation  that  the 
vessel  was  violating  neutrality  or  violating  any  law  of  nations  or  any 
law  of  France,  other  than  that  which  demanded  a  role  d'iquipage  in  a 
prescribed  form.    Consideration  of  this  question  is  therefore  reserved. 

Some  of  the  points  presented  in  the  argument  we  do  not  consider 
more  in  detail,  as  they  have  either  been  discussed  by  us  before,  or.  in 
our  judgment,  are  decided  in  the  conclusions  we  have  reached  upon 
other  contentions  to  which  they  are  subordinate. 

We  thank  counsel,  both  those  representing  the  claimants  and  those 
who  appeared  in  behalf  of  the  Government,  for  the  valuable  assistance 
they  have  rendered  the  court  by  the  thorough  presentation  of  the  many 
and  complicated  questions  involved  in  these  cases. 

Motion  denied. 


WILLIAM    R.    HOOPER,    Administrator,    v.    THE    UNITED 

STATES.  AND  Other  Cases* 

(No.  3694  French  Spoliations.    Decided  November  14.  1887] 

On  the  Proofs 

This  is  the  fourth  decision  in  the  French  Spoliation  Cases.  See  (Tray '^  Case 
(21  C  as.  340)  ;  Holbrook  (ibid.  434)  ;  Cushing's  (22  ibid.  1).  Ihe 
important  subjects  consi<<  ;d  are:  The  duration  of  the  treaties 
with  France;  the  right  of  uninsured  owr.ers  to  constructive  msiirance; 
the  status  of  American  vessels  commissioned  to  atUck  French  men-of- 
war  and  carrying  armaments;  the  blockade  of  British  ports  in  the  West 
Indies ;  the  liability  of  France  for  salvage  on  recapture ;  the  measure  of 
damages  for  freight  earnings. 
I.  The  treaties  with  France.  1778,  constitute  the  rule  by  which  all  differ- 
ences between  the  two  nations  are  to  be  measured  after  February  6, 
1778.  and  before  July  7,  1798.  Subsequent  to  the  latter  date  they  are 
governed  by  international  law. 
II.  A  treaty  is  in  its  nature  a  contract,  and  if  the  consideration  fail  or  im- 
portant provisions  be  broken  by  one  party,  the  other  may  declare  it 
terminated. 

III.  Abrogation  of  a  treaty  may  be  justified  by  a  change  of  circumstances. 

IV.  The  circumsuiices  justified  the  United  Sutes  in  annulling  the  treaties  of 

1778;  and  the  Act  of  July  7,  1798,2  was  effective  as  between  nations     By 
the  enactment   the  compacts  ended. 


>  Court  of  Qaims  Reports,  vol.  22,  page  406. 


5  Sufra,  p.  <)S. 


HOOPER  V.  UNITED  STATES 


351 


V. 


VI. 


VII. 
VIII. 

IX. 

X. 

XI. 

XII. 
XIII. 


The  insurance  to  be  allowed  to  owners  in  French  Spoliation  Cases  is 
neither  constructive  insurance  nor  insurance  "to  cover,"  but  premiums 
actually  paid. 

A  vessel  fitted  for  the  purpose  of  seizing  French  armed  vessels  under 
Uie  Act  of  July  9,  1798.  was  legitimate  prize  in  the  limited  war  then 
defined  by  Congress;  but  the  arming  of  a  merchant  vessel  strictly  for 
defense  whose  only  object  was  trade  did  not  authorize  condemnation, 
even  if  a  license  under  the  Act  of  Jun"  25,  1798,'  or  the  Act  of  July  9 
1798  M 1  Stat.  L.,  pp.  S12,  578J,  wer    .    ,  -j  on  board. 


lot  liable   :o  condeituiation ; 
«    "'•d  the  captors 


courts 


I-. 


oil   ''(: 
■•   ("rt. 


■'   'J  V 
,lr 


the-: 


'ni..ffl  h 
dciii'i  on 
itatCs. 


•  itish  port  in 
»     Therefore  a 

'i'.  •x:t  to  con- 

sht  must  clear 

'spensable;  an 

,h  no  paper  be 

France;  but  by 
'f  a  release  from 


A  vessel  may  be  subject  to  seiz. 

and   if  there  be  probable  car    ,   |)ri: 

costs  though  the  vessel  be  n>  ;  /.>nu 
No  actual  blockade  was  main*i  .  .      i. 

the  West  Indies  during  t'  <  ,,|  , 

provision-laden  ship  bof    .  -   •    .    Sr 

demnation  while  the  tr«. . I :  .;/« 

The  burden  of  proof  in  p. I         ■  ),e.  '    c 

herself   from  suspicion         t  .  o    , ,  ( 

honest,  commercial,  lawuu  \    va^- 

produced. 

The  spoliations  of  France  were  ili  i(o>     i 

the  treaty  of  1800  were  surrender    i 

France  of  her  claims  against  the  Ui...l 
Salvage  is  remuneration  for  aid  in  case  of  danger.     During  the  period 

of  French  spoliations  the  conduct  of  the  French  prize  courts  rendered 

recapture  a  rescue  from  actual  danger,  and  the  recaptors  entitled  to 

salvage. 

Freight  earned  is  an  element  of  value  in  property  lost;  full  freight  may 
be  often  recoverable  although  the  vessel  may  not  teach  her  destina- 
tion; but  in  these  cases  the  court  adopts  the  general  rule  of  commercial 
usage,  two-thirds  of  the  full  freight  as  the  measure  of  damages. 

When  a  vessel  s  actually  under  contract  for  a  voyage  to  one  port  thence 
to  proceed  to  another,  she  has  a  present  existing  title  in  the  freight 
money  of  the  entire  voyage;  but  this  do-s  not  extend  to  a  mere  ex- 
pectancy of  finding  a  cargo  at  her  first  port. 

The  Reporters'  statement  of  the  case : 

The  first  report  to  Congress  in  these  cases  was  made  on  i. ,  hrst 
day  of  the  present  term,  December  6,  1886.  The  cases  reported  and 
the  findings  sent  up  will  be  found  in  the  case  of  Gushing  (22  C.  Cls.  1 ). 
Those  findings  and  the  opinions  of  this  court  in  Gray's  Case,  in  Hol- 
brook's  Case,  and  in  Cushing's  Cise  were  likewise  published  by  Con- 
gress, and  constitute  Miscellaneous  Document  No.  6,  H.  R.,  Forty- 
ninth  Congress,  second  session. 


'  Supra,  p.  59. 


'  Supra,  p.  65. 


352  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  opinion  in  the  present  case  of  Hooper  was  delivered  Novem- 
ber 7,  1887.  The  findings  will  form  a  part  of  the  second  report  to 
Congress.*    They  are  as  follows : 

I.  The  schooner  John,  a  duly  registered  vessel  of  the  United  States. 
of  which  John  C.  Blackler  was  master,  sailed  on  a  commercial  voyaf,'e 
from  the  port  of  Salem,  Mass.,  bound  for  Martinique  with  a  carf;o  of 
codfish,  hogshead  bungs,  and  lumber,  owned,  one-half  the  vessel  and 
the  whole  of  the  cargo,  by  William  Gray,  now  deceased,  of  whom  tlic 
claimant  William  Gray,  of  Boston,  Mass.,  is  the  duly  appointed  admin- 
istrator, and  the  other  half  of  the  vessel  by  William  Blackler,  n.w 
deceased,  of  whom  the  claimant  William  R.  Hooper  is  the  appointid 
administrator;  all  citizens  of  the  United  States. 

She  was  of  111  tons,  with  seven  men,  had  two  guns,  and  carried  ;i 
letter  of  marque. 

II.  Said  vessel  while  lawfully  pursuing  her  voyage  was  seized  ■  n 
the  high  seas,  near  Martinique,  by  the  French  frigate  La  Syrtnr  i  or 
CyrcH)  on  the  first  day  of  February,  1800,  and  there  burned,  sinik. 
and  destroyed.  The  captain  was  taken  by  said  frigate  into  the  Frt  iich 
port  L'Orient,  where  proceedings  were  instituted  in  a  prize  court. 
wherein  claim  was  made  in  behalf  of  the  owner,  Gray,  for  paynunt 
for  said  vessel  and  cargo. 

It  appears  that  "the  seizure  was  decided  upon  as  much  on  act-mmt 
of  default  in  the  production  of  her  crew  list  (role  d'iquipas^c)  as  that 
there  was  found  on  board  a  commission  of  war  with  instruction'*  to 
attack  French  ships."  elsewhere  in  the  record  called  a  letter  of  niari|iie 
to  attack  armed  French  ships,  and  judgment  was  given  against  llie 
claim."»nt. 

III.  The  case  was  taken  to  the  council  of  prizes  at  Paris,  wlierc  'Ik- 
captain  alleged  "that  neither  he  nor  his  crew  were  allowed  to  take 
their  baggage  before  the  ship  was  set  on  firt.  and  that  their  captor  to.., 
away  the  sails,  provisions,  and  everything  else  which  thev  tli  \i.;li* 
proper."  The  French  commissioner  in  his  argument  for  the  'niuh 
Government  before  that  tribunal,  said,  among  other  things.  "I  wonl.l 
argue  willingly  for  the  release  of  iioth  (vessel  and  cargo)  according' 
to  the  provisions  of  articles  of  the  agreement  of  the  8th  X'endfinMire, 
year  9,  if  the  property  were  still  intact,  without  preliminary  ,'dunntit. 
but  this  is  not  Mr.  Gray's  case,  since  the  ship  John  was  sunk  and 
the  owner  had  no  profit  from  her."     "I  think  that  in  the  (!eci'>i<'H  tt 


•  S'M-  Min    D<<    No    .^.  Srtidtr.  I"i{liitli  ("■.ni!rr«».  fir»t  «-»<ion 


HOOPER  V.  UNITED  STATES 


353 


is  fair  that  the  council  should  recommend  Mr.  Gray  to  have  recourse 
to  his  minister  to  request  him  to  cause  the  fact  of  this  carrying  away 
to  be  verified,  and  obtain  from  the  justice  of  the  Government  the  in- 
demnification which  may  be  due  him." 

The  council  decided  and  entered  a  decree  that  "the  council  declares 
the  merchant,  William  Gray,  Jr.,  not  justified  in  his  claim  for  the 
value  of  the  ship  John  and  cargo,  but  with  liberty  to  appeal  to  the 
Government  for  justice  in  regard  to  the  property  which  he  proves  to 
have  been  removed  from  said  vessts  by  the  crew  of  the  frigate  Syrine." 

Mr.  lyUliam  E.  Earle,  Mr.  William  Gray,  Mr.  Ed-ward  Lander,  Mr. 
George  S.  Boulwell,  Mr.  A.  H.  Cragin.  .\fr.  Leonard  Myers,  Mr.  LaKf- 
rence  Lnvis,  Jr.,  Mr.  James  Loxvndes,  Mr.  Augustine  Chester,  and 
Mr.  S.  Prentiss  Nutt  were  heard  for  claimants. 

Mr.  Benjamin  IVilson  and  Mr.  Charles  S.  Russell  (with  whom  was 
Mr.  Assistant  Attorney-General  Htm-ard)  for  the  defendants. 

Davis,  J.,  delivered  the  opinion  of  the  court : 

The  court  has  now  delivered  three  opinions  upon  general  issues 
raised  in  the  French  Spoliations  Cases.  The  first  related  to  the  broad 
questions  as  to  the  validity,  against  France,  of  the  claims  as  a  class, 
and  the  resulting  liability  of  the  United  States  to  the  claimants;  the 
second  was  directed  more  especially  to  forms  of  pleading,  the  value 
of  evidence,  and  rights  of  insurers;  while  the  third  disposed  of  a 
motion  made  by  the  defendants  for  a  rehearing  of  the  general  ques- 
tions discussed  in  the  first  opinion.  (Gray,  administrator,  v.  The 
United  States,  21  C.  CIs.  340;  Uolbrook,  administmor,  v.  The  United 
States,  21  C.  CIs.  334 ;  Gushing,  administrator,  v.  The  United  States, 
22  C.  CIs.  1.) 

.1  large  numlwr  of  cases  have  since  been  argued  and  submitted  to 
the  court,  and  certain  general  questions  arc  found  rai.sed  in  many  of 
them.  Those  questions  we  shall  now  proceed  to  discuss,  as  well  as 
two  points  which  were  sent  back  by  the  onirt  for  further  argument 

it  is  urged  by  the  claimants  that  tlu  treaties  of  1778  remained  in 
force,  notwithstanding  the  abrogating  ict  of  July  7,  170S,  tnitil  the 
fin.-il  ratification  of  the  treaty  of  1800.  .ind  th.it  fhc*e  treaties  prcscrihie 
the  rule  by  which  all  the  --iHiliation  clairuv  are  to  bo  measured.  This 
position  is  denied  bv  the  (iovernment. 


354 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


For  the  purpose  of  this  branch  of  the  case,  the  period  of  the  spoli- 
ations may  be  divided  into  two  parts :  that  prior  to  July  7,  1798,  and 
that  subsequent  thereto  and  prior  to  the  ratification  of  the  treaty  of 
1800. 

As  to  the  first  period,  we  find  the  position  on  both  sides  to  have 
been  consistent,  which  a  few  citations  covering  different  years  will 
clearly  show. 

In   February,   1793,  the   National  Convention  granted  substanti  il 
favors  to  the  United  States,  among  them  opening  the  ports  of  the 
colonies  to  American  ships,  and  granting  to  produce  carried  in  Ameri- 
can bottoms  duties  the  same  as  those  imposed  upon  French   vessels 
(Senate,  19th  Cong.,  1st  sess..  Doc.  102.  p.  35).    This  was  followed  b\ 
the  decree  of  March  26,  1793,  granting  new  favors  to  what  the  Cor- 
vention  called  their  "ally  nation"  {ibU.,  p.  3<)).    Soon  after  this  M,  I.  • 
Brun,  the  minister  of  foreign  affairs,  replying  to  a  complaint  from  o. 
minister,    Mr.    Morris,   said   that   lie   had    reijuested   the   minister  < 
marine  "to  prevent  in  the  future  the  vessels  of  our  good  allies  frc n 
being  exposed  to  ih.    attacks  of  <mr  sliip';  of  war  and  privateei- 
(ibid.,  p.  38).     I'pon  the  9th  May.  1793  (i7>i(/.,  p.  42).  the  C"onv< 
tion  passed  a  decree  authorizing  the  arrest  of  neutral   vessels  lad 
wholh-  or  in  part  with  neutral  property  and  hound  to  an  enemy  jio :;. 
or  laden  with  enemy  merchandise,     Mr.  Morris  unmediately  (Uni.iiid.  i 
that  the  I'nitcd  States  he  esempted  from  the  operation  of  this  dernv 
as  cnntrarv  to  the  terms  of  the  treaty  of  commerce  ( ibid.,  p.  44  i.    11^ 
reque-t    was   complied   with,   the  Com    ni('n'>   action   in   this   re;;,tr'i 
being  hasei!  upon  the  sixteenth  article  oi  tliat  treaty  i  :hid..  \t.  4()) 

N'ow  occurred  a  ciirioiis  intidctit   in  Ii'^islative  liislory.     I'ive  <\:i\^ 
after  the  pas-age  of  the  exemption  the  C'onvention  rever-id  its  :u!i  ,, 
Mr.  Morns  protested  ( iV'i./  .  p.  4"i.  and  th.-   1-t   Inly  tlie  Cmv.-iiti  n 
asjain  decreed  "that   the  vessels  of  the  Inifed   States   .ire   ii  t   i  ■"■ 
prised  in  the  (lisiK>sitii>!i-  "f  the  deerre  of  tb*"  9th  May,  confii  in.il''v 
to  the  sixteenth  article  ><(  the  trc  <tv  >onc!ii.l.il  the  f>th  ^'f  Felir  i.iri. 
1778."     Inlv  27th  this  exception  was  annulled  and  the  I  nitcl  --i  'tcs 
were  again  thrown  under  the  rtT,.,t  of  the  oritji.ial  decrci-  ■il  thr  ]■•-' 
ceding  May  (ibid  .  p    >0).     Morns  wn.te   leffers,  n,  tlu  n  S(ir<ti'\ 
."state;     "Tlie  dcTce  res|KTtiiv.,'  nentr.i'  i.i.tti.m-.      .  f.ir  :i-   it   :■    ;■'    ' 
the  V'SscN     i  the   ( 'n'teil  States,  li.is,  vmi   ,v  ill  -er    !wen  liaiiilu   '    iU     I 
in  a  sliameitil  mannt^      I  am  tolil.  frfj-n  H:;\rr.  that  it  is  !n   th-    f"'"- 
fif  nu)ni\    lli.'it  tl'i-  diMermit'.Hion .   winch  \iolate  "iir  riiilits  h    w    '"•  •' 


HOOPER  V.  UNITED  STATES 


355 


obtained ;  and,  in  comparinj^  dates,  events,  and  circumstances,  this  idea 
seems  to  be  but  too  well  supported"  (ibid.,  p.  52).  Prior  to  this  Mr. 
Morris  had  written  the  minister  of  foreign  affairs  asking  that  the 
matter  be  fixed  definitely,  otherwise  "we  must  expect  to  .see  that 
species  of  dispute  multiplied,  in  wiiicli  cupidity  on  the  one  hand  and 
fear  on  the  other  will  give  place  to  the  calumnious  insinuations,  which 
lead  uninformed  persons  to  think  that  the  interests  of  individuals 
might  influence  the  national  decisions  (ihiiL.  p.  47).  This  note  was 
followed  by  the  exemption  of  July.  >onn  after  which  Morris  laid 
before  the  foreign  office  more  specific  charges  (ibid.,  p.  ,S1).  notwith- 
standing which  the  exemption  w.is  again  re\erso<l.  In  all  this  trans- 
action the  existing  force  of  the  trc.itics  o.'  177S  wa>  nowhere  denied, 
and  in  the  two  exception  was  o\i)rcssly  admitted. 

.■\t  this  time  Genet  was  carryinj;  on  his  objectinnahle  course  in  the 
United  States  under  the  shelter.  a>;  he  contended,  of  ilie  treaties,  whose 
binding  effect  Mr.  Jefferson  did  not  deny,  while  lie  disputed  Genet's 
constructior        them  (ibid.,  pp.  ?.^  ,-(  .o-,/. ». 

Mr.  M  -■• .  ■  still  endeavored  to  ,eiure  exemption  from  the  Mav 
decree,  but  without  success,  and  finally  he  wrote,  during  Otober, 
1793,  that  in  effect  the  nnnistir  of  foreign  at"tair>  had  .acknowledged 
and  lamented  to  him  the  impmprietv  of  the  decrei?.  "hut  unablo  to 
prevail  over  the  greater  intliience  for  the  repeal  .f  it.  he  is  driven  to 
the  necessity  of  exercising  a  step  wliich  it  is  n  t  jxi^sible  to  justify 
There  is  no  u.sc  in  arguing  with  those  who  are  already  convince.,!, 
and  where  no  good  is  to  he  exiH'Cted  -onie  evil  mav  follow.  1  have. 
Ilurefore.  only  stated  the  'iiu^'ioii  -n  jt^  mie  -round  and  leave  to 
>"V,  ni  .America  to  insist  .  n  a  rigj.t  ix-rfonnanee  ot  the  treat\  or  slide 
liaek  to  the  ecjual  state  of  mitettere.l  iieulralitv"  i  ihid  .  p.  7y). 

.Mr.  Monroe  now  ^iicceedcii  Mr.  .Morn-  in  I'aris,  ,,!i(|  wnttiii;  liome 
that  he  "felt  extremely  cmharras-ed  how  to  ti.ncli  agam  Men  tluir  |the 
French]  infriugeineiit  of  the  treaty  .  t  eo-iir.utce  wluih-T  i,,  ,,,ii  ,,11 
them  to  e.\ecute  ,1,  or  leave  that  qiuMi  .11  on  the  i^round  I  had  lirt 
i'l^'C'd  It.  .  .  .  rpon  full  consideratMii  1  conehided  that  it  wa- 
^lie  most  safe  and  sound  p<>lic\  to  le.n.  tin-  p.^int  where  it  was  Ih?- 
iore"  (ibid.,  p.  S-i).  He  evidently  ma.!.'  a  li-;iiu  ti..:i  U-tween  "advi>- 
!!■>:  and  jjressing"  the  execution  of  the  ire.ii\  .111. 1  iii-wiing  ii|Hin  •: 
execution.  Insteail  of  ileman.lill..  it>  e\einti..n  a^  a  nulit  he  .uh  .  .j  it 
a>  a  politic  act  on  the  part  of  Iraiice.  l..inn-  tii..:  ,  more  decide.! 
course  0.1  his  part  would  lead  to  a  cnniter  demand   hn    ili,    cseciitio-i 


356 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


■|5!.- 


by  the  United  States  of  the  guaranty  clause.  To  this  communica- 
tion Monroe  received  from  the  Secretary  of  State  a  rather  Urt 
response,  of  which  this  is  the  important  paragraph  (ibid.,  p.  87) : 

The  fourth  head  of  inquiry  stated  in  your  letter  shows  that 
you  were  possessed  of  cases  which  turned  entirely  upon  the  im- 
propriety of  the  decree,  and  such,  too,  was  certainly  the  fact. 
Now,  without  the  abrogation  of  the  decree,  so  far  as  it  repre- 
sented those  cases,  the  redress  which  you  were  instructed  to  de- 
mand could  not  Ik-  obtained.  In  truth  there  was  no  cause  or  pre- 
tense for  asking  relief  but  uptm  the  ground  of  that  decree  having 
violate;!  the  treaty.  Does  not  this  view  lead  to  the  inevitable  con- 
clusion that  the  decree,  if  operative  in  future  instances,  would  Ik- 
no  less  disagreeable,  and  conse(|uently  that  its  operation  in  future 
instances  ought  to  be  prevented,  a  circumstance  which  could  he 
accomplished  only  by  a  total  repeal? 

Soon  after  this  the  Convention  resolved  to  carry  into  strict  execu- 
tion the  treaty  of  commerce  of  1778  (ibid.,  p.  88),  so  that  the  >ear 
1795  opened  with  a  similar  understanding  on  each  side  as  to  the  en- 
durmg  force  of  the  treaty. 

-At  this  time  commenced  to  circulate  in  France  reports  as  to  whit 
Mr.  lav  had  been  doing  in  England.  Mr.  Monroe  thought  the  utmost 
cordiality  had  been  restored  between  the  two  Republics,  and  yet  feared 
that  the  prospect  had  Itecome  clouded  by  the  rumors  from  F.ngl.ind 
In  August.  l~9,'i,  newspajiers  reached  I'aris.  which  contained  the  teM 
of  the  lav  treaty  iihid..  p.  127).  and  so  much  feeling  was  aroii-<.! 
that,  after  considerable  dela> .  it  was  decided  to  send  an  envoy  t.>  tin- 
Inited  States  to  declare  to  our  tiovernmoni  the  dissatisf.action  ..f  the 
French  sn  'resi>ect  to  our  treaty  with  (ireat  I'.ritain  and  oilier  .i't^ 
which  thev  deemed  unfriendly  to  them"  ( ihui  .  y>  12**1  :  a  course  whuh 
.Monroe  endeavored  to  prevent 

i  Iiereupon  followed,  in  March.  \7'X^  iihui..  p.  1.^1  i.  a  "siminiin 
ex|>.sitton  of  the  complaints  of  the  l-rench  <  .overnment  against  the 
r.overnment  of  the  I'nited  State*.,"  in  which  an  infraction  of  the 
treaties  is  relied  upon  a-;  a  legitimate  grievance,  :ind  in  a!i>werini; 
which  Monroe  (ibid.,  p.  135)  tacitly  admits  l>y  his  arj^-nnunt  th- 
enduring  force  of  those  treaties. 

The  lay  Ireatv  was  ratified,  news  then. if  reaclieit  I'aris  i  ibui  ;' 
142),  aiul  the  threatening  cloud  burs'. 

The   minister   of    foreiiin    affair^    informed    Mr     Mmiroe    that    liio 


HOOPER  V.  UNITED  STATES 


357 


Directory  regarded  the  Jay  treaty  as  a  breach  of  friendship,  and  saw 
"in  the  stipulations  which  respect  the  neutrality  of  the  flag  an  aban- 
donment of  the  tacit  engagement  which  subsisted  between  the  two 

nations  on  this  point  since  the  treaty  ol  commerce  of  1778 

After  this,  citizen  minister,  the  Executive  Directory  thinks  itself 
founded  in  regarding  the  stipulations  of  the  treaty  of  1778  which  con- 
cern the  neutrality  of  the  flag  as  altered  and  suspended  in  their  most 
essential  parts  by  this  act,  and  that  it  would  fail  in  its  duty  if  it  did 
not  modify  a  state  of  things  which  would  never  have  been  consented 
to  but  upon  the  condition  of  the  most  strict  reciprocity"  (ibid.,  p.  143). 
Monroe  argued  in  reply  that  the  treaty  of  1778  had  not  been  violated, 
closing  with  a  renewal  of  his  coniplaints  of  French  conduct  in  regard 
to  American  commerce. 

Pinckney  was  now  ordered  out  to  succeed  Monroe,  but  before  he 
reached  Paris  France  gave  notice  of  intended  reprisals  (ibid.,  p.  147), 
<nd  in  October  (1796),  Monroe  received  a  copy  of  the  Executive 
Directory's  decree  of  July  2,  17%,  with  notice  that  it  would  \>e  applied 
to  the  I'uited  States,  and  that  his  functions  as  minister  were  suspended 
libiil..  p.  148).  The  decree  provided  that  France  should  treat  all 
"neutral  vessels,  either  as  to  confiscations,  as  to  searches  or  captures, 
in  the  same  manner  as  tliey  shall  suffer  the  English  to  treat  them." 
In  communicating  the  decision  of  his  Government,  however,  the 
French  minister  was  careful  to  state  that  "the  ordinary  relations  sul)- 
isting  between  the  two  [leople.  in  virtue  of  the  conventions  and 
treaties,  shall  not  on  this  accuinit  be  suspended."  Pinckney  arrived, 
!iin  was  not  received,  and  Monroe  was  dismissed  with  language  which 
Mr.  .\dams  described  as  Mudiouslv  marked  with  indignities  towards 
t!ie  (lovenmient  of    iie  I 'nited  States" 

Till,  brings  us  to  the  close  of  17%,  and  however  strained  the  rela- 
tli.ns  of  the  two  countries  had  iKConie.  neither  had  yet  endeavored  to 
tl^row  off  the  yoke  ol  the  treaties;  on  the  contrary,  all  discussion  was 
I.  iindeil  upon  thetn  a^  still  in  force 

111  l-eliruarv.  17**7,  the  I'rencli  minister  .■!  fonii;ii  atTairs  claimed 
ilie  benefit  of  the  treaty  in  a  t.illaciou-.  arj^iment  as  to  the  role 
*'"/"'/'''.','<'.  sugnestitit;  mcideiitaliv  that  "tlie  lederal  ( lovernment 
<l()ir,;t'css  had  never  ceaseil  to  look  iijhmi  the  treaty  of  177H  as  obliga- 
tory n|H)n  tlic  two  nati.ms"  [ibid..  |i.   15t)). 

Ihc  decree  of  the  lixeciitive  |)irector\  of  .March  2,  17''",  which  is 
very  iiar^h  uiKin  neutrals,  speaks  ol  the  ireaiio;  as  existnig  in  a  shape 


I  '"^'^ 


358 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


^y 


f;l 


modified  by  the  Jay  treaty  (iWd.,  p.  160).  In  April  succeeding,  the 
condemnation  of  an  American  vessel  is  excused  as  in  accordance  with 
treaty;  and  this  is  again  done  in  the  following  November.  The  in- 
structions to  Pinckney.  Marshall,  and  Gerry  (July  15,  1797),  recog- 
nized the  treaties  as  still  in  force  (ibid.,  p.  453) ;  and  the  18th  March, 
1798,  Talleyrand  based  his  complaints  upon  them  (ibid.,  p.  493). 
Finally  Congress  found  it  necessary  by  statute  to  declare  the  treaties 
abrogated;  an  action  clearly  useless  if  they  were  non-existent;  an 
action  which  in  effect  admitted  their  continuing  force  to  that  day. 

The  treaties  of  1778,  particularly  the  treaty  of  commerce,  which  is 
the  important  one  for  our  purposes,  were  in  existence  until  the  pass.iiji' 
of  the  abrogating  act.  Whatever  disputes  occurred  between  this 
country  and  France  during  the  disturl)ed  period  following  the  con- 
clusion of  the  Jay  treaty  arose  from  differences  of  interpretation  of 
various  clauses  of  the  Franco-.A^merican  treaty,  and  on  neither  side 
do  we  find  seriously  advanced  a  contention  that  the  treaties  were  not 
in  existence  and  were  not  binding  upon  both  nations.  The  Inik'l 
States  distinctly  urged  their  enduring  force,  while  the  French  ili- 
parted  from  this  position  only  in  this  (if  it  be  a  departure),  that  tlu- 
Jay  treatv  introduced  a  modification  into  their  treaty  with  us.  of 
which  the  •  were  entitled  to  the  tjenefit. 

We  are  of  opinion  that  the  treaties  of  1778,  so  far  as  they  moditud 
the  law  of  ni.'ions,  constituted  the  rule  by  which  all  difffrctui. 
t>etwcen  tlie  two  naiik:'.«  were  to  be  measured  after  February  i',  \77X. 
.tnd  before   lulv  7,  1798. 


As  to  the  period  after  July  7,  1798: 

On  that  date  the  abrogating  act  passed  by  the  Congres-  w.i>  a[>- 
proved  by  the  IVesident  and  becanx  :i  law  within  the  jurisilutinn  '<i 
the  Constitution;  a  law  replacing  tu  that  extent  the  treaties,  am!  IjiihI- 
ing  ufKin  all  subordinate  agents  of  the  nation,  including  its  coiirtv  !>!:t 
not  necessarily  final  as  the  annulment  of  an  existing  contract  Umtcn 
two  sovereign  p<iwers. 

A  treaty  which  on  its  face  is  of  indefinite  duration  and  wliiili  mi  ■ 
tains  no  clause  providing  for  its  termination  ma\  l)c  annulU'l  l>y  <  ne 
of  the  j)arties  under  certain  circumstances.  .\s  between  the  nation> 
It  i-  in  its  nature  a  contract,  and  if  the  consideration  fail,  for  example. 
or  if  its  important  provisions  he  broken  by  one  party,  the  other  mav. 
at  \\<  i.p'i"".  declarf  it  terminated.      The  United  States  have  su  held 


HOOPER  V.  UNITED  STATES 


359 


in  regard  to  the  aa>-ton-Bulwer  treaty,  as  to  which  Mr.  Frelinghuy- 
sen,  then  Secretary  of  State,  wrote  Mr.  Hall,  minister  in  Central 
America  (July  19,  1884): 

The  Clayton-Rulwer  treat}'  was  voidable  at  the  option  of  the 
Uhjted  States.  This.  I  think,  has  been  demonstrated  fully  on  two 
grounds.  First,  that  the  consideration  of  the  treaty  having  failed, 
its  object  never  having  been  accomplished,  the  United  States  did 
not  receive  that  for  which  they  covenanted;  and.  second,  that 
Great  Britain  has  persistently  violated  her  agreement  not  to  col- 
onize the  Central  American  coast. 

Here  concur  two  clear  reasons  for  annulment,  failure  of  considera- 
tion and  an  active  breach  of  contract. 
Abrogation  of  a  treaty  may  occur  by  change  of  circumstances,  as: 

When  a  state  of  things  wfiich  was  the  basis  of  the  treaty,  and 
one  of  its  tacit  conditions,  no  longer  exists.  In  most  of  the  old 
treaties  were  inserted  the  clausula  rcHis  sic  stantibus,  by  which 
the  treaty  might  l>e  construed  as  abrogated  when  material  cir- 
viimstances  on  which  it  rested  changed.  To  work  this  effect  it  is 
not  necessary  that  the  facts  alleged  to  have  changed  should  be 
material  conditions.  It  is  enougli  if  they  were  strong  induce- 
ments to  the  party  asking  abrogation. 

The  maxim  "Comrntio  omnis  intelli^itttr  rehxis  sic  stantibus" 
is  held  to  apply  to  all  cases  in  which  the  reason  for  a  treaty  has 
failed,  or  there  has  been  such  a  change  of  circumstances  as  to 
make  its  performance  impracticable  except  at  an  imreasonable 
sacrifice.     (Wharton's  Com.  .-Km.  l^w..  §  161.) 

Treaties,  like  other  contracts,  are  violated  when  one  partv  neg- 
lects or  refuses  to  do  that  which  moved  the  other  j>artv  to  engage 
in  the  transaction.  .  .  ,  When  a  treaty  is  violated  by  one 
party  in  one  or  more  of  its  articles,  the  other  can  regard  it  as 
broken  and  dem.and  redress,  or  can  still  re<|iiirc  its  oUservance. 
rWoolsey,  §   112.) 

The  Lnited  States  annulled,  or  :\t  least  attempted  to  aninil,  the 
treaties  with  France  ujwn  the  grotmiU,  stated  in  the  pre.imble  of  the 
statute,  that  the  treaties  had  been  repeatedly  violated  by  France,  that 
the  claims  of  the  L'nited  States  for  reparation  of  the  injuries  conmiitted 
.ipainst  them  hail  been  refuse<l,  that  attempts  to  negoti.itc  had  bti-n 
rciielled  with  indignity  and  that  there  was  ■<till  l)eing  pursued  against 
tlii-'  country  a  system  of  "predatory  violence  nifracting  the  said  treaties 
and  hostile  to  the  rights  of  a  free  and  independent  nation."     Such 


360 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


were  the  charges  upon  which  was  based  the  enactment  that  "the 
United  States  are  of  right  freed  and  exonerated  from  the  stipulations 
of  the  treaty  and  of  the  consular  convention  heretofore  concluded 
between  the  United  States  and  France,  and  that  the  same  shall  not 
henceforth  be  regarded  as  legally  obligatory  on  the  Government  or 
citizens  of  the  United  States." 

The  treaties  therefore  ceased  to  be  a  part  of  the  supreme  law  of  the 
land,  and  when  Chief-Justice  Marshall  stated,  in  July,  1799  (Chirac 
V.  Chirac.  2  Wheaton,  272),  that  there  was  no  treaty  in  existence 
between  the  two  nations,  he  meant  only  that  within  the  jurisdiction 
of  the  Constitution  the  treaties  had  ceased  to  exist,  and  did  not  mean 
to  decide,  what  it  was  exclusively  within  the  power  of  the  political 
branch  of  the  Government  to  decide,  that,  as  a  contract  between  two 
nations,  the  treaties  had  ceased  to  exist  by  the  act  of  one  party,  a  result 
which  the  French  ministers  afterwards  said  could  be  reached  only  by 
a  successful  war. 

The  only  question  we  have  now  to  consider  is  that  of  the  interna- 
tional relation.  The  annulling  act  issued  from  competent  authority 
and  was  the  official  act  of  the  Government  of  the  United  States.  .So 
far  as  it  was  within  the  power  of  one  party  to  abrogate  these  treaties 
it  was  indisputably  done  by  the  act  of  July  7,  1798.  Notwithstanding 
this  statute,  did  not  the  treaties  remain  in  effect  to  this  extent,  if  no 
further,  that  they  furnish  a  scale  by  which  the  acts  of  France,  whicli 
we  are  charged  to  examine,  are  to  be  weighed ;  and  in  considering  the 
legality  of  those  acts  are  we  not  to  follow  ihe  treaties  where  tlity 
vary  the  law  of  nations?  The  claimants  in  very  l.-amed  and  philo-opli- 
ical  ar^ifinncnts  contend  for  the  affirmative. 

In  the  first  place  we  are  referred  l)y  them  to  the  course  nf  tlie 
Executive:  this,  it  is  said,  is  binding  upon  the  judiciary,  and  is  favor- 
able to  their  contention.    This  position  we  will  first  examine. 

In  1829  the  Supreme  Court  had  occasion  to  construe  the  treaties 
relating  to  the  purchase  of  Ix)uisiana,  particularly  that  nf  San  llie- 
fonso.  The  Executive  had  already  given  an  interpretation  to  that 
instrument,  and  Marshall,  Ch.  j..  who  delivered  the  opinion  of  the 
court,  said  on  this  point  (Foster  et  al.  v.  Neilson,  2  Peters.  253')  : 

In  a  controversy  between  two  nations  concerning  national  Ixmiii- 
darv.  It  i^  scarcely  possible  that  the  courts  of  either  slumld  refuse 
to  abide  by  the  measures  adopted  by  its  ..wn  Government.  There 
being  no  common  tribunal  to  decide  between  them,  each  deter- 


'Am^^.SX'SBi 


HOOPER  V.  UNITED  STATES 


361 


mines  for  itself  on  «s  own  rights,  and  if  they  can  not  adjust  their 
differences  peaceably,  the  right  remains  with  rhe  strongest.  The 
judiciary  is  not  that  department  of  the  Government  to  which  the 
assertion  of  its  interests  against  foreign  powers  is  confided ;  and 
Its  duty  commonly  is  to  decide  upon  individual  rights,  according 
to  those  principles  which  the  political  departments  of  the  nation 
have  established.  If  the  course  of  the  nation  has  been  a  plain 
one  Its  courts  would  hesitate  to  pronounce  it  erroneous.  We 
think,  then,  however  individual  judges  might  construe  the  treaty 
of  San  Ildefonso.  it  is  the  province  of  the  court  to  conform  its 
decisions  to  the  will  of  the  legislature  if  that  will  has  been  clearly 
expressed  (p.  307).  ' 

In  United  States  v.  Arrcdondo  (6  Peters,  711),  and  in  Garcia  v. 
Lee  (12  Peters,  5\\),  this  principle  was  acknowledged  and  affirmed, 
while  later  in  Williams  v.  Suffolk  Insurance  Company  (13  Peters,' 
415),  the  court  said  as  to  the  recognition  of  Buenos  Ayres  (p.  420) :  ' 

And  can  there  be  any  doubt  that  when  the  Executive  branch  of 
the  (.overnment,  which  is  charged  with  our  foreign  relations, 
shall  m  its  correspondence  with  a  foreign  nation  assume  a  fact 
III  regard  to  the  sovereignty  of  any  island  or  country,  it  is  con- 
clusive on  the  judicial  department?  And  in  this  view  it  is  not 
material  to  inquire,  nor  is  it  the  province  of  the  court  to  deter- 
mine, whether  the  Kxecutive  be  right  or  wrong.  It  is  enough  to 
know  that  in  the  exercise  of  his  constitutional  functions  he  has 
decided  the  question.  Having  done  this  under  the  responsibilities 
which  belong  to  him  it  is  obligatory  on  the  people  and  Govern- 
ment of  the  Tnion.  ...  In  the  cases  of  Foster  v.  Neilson 
1.2  Peters.  2.i3.  307),  and  Garcia  v.  Lee  (12  Peters,  .^11)  this 
court  have  laid  down  the  rule  that  the  action  of  the  political 
branches  of  the  Government  in  a  matter  that  belongs  to  them  is 
conclusive. 

We  find  in  Phillips  v.  Payne  an  even  stronsjer  affirmance  of  this 
portion  when  tiie  court  say  that  in  oases  like  it  "the  ju.iicial  is  Ixnind 
to  follow  the  action  of  the  political  departnuiit  ..f  the  r.overnment  and 
I-  foncliiiled  by  it"  (92  l'.  S.  1.30 1. 

The  action  of  the  F.xecutive  is.  then,  ciuliisivo  iiix.n  the  judiciary 
wlifn  that  action  is  taken  within  the  jurisdiction  i,nveii  hv  the  ("onstitii- 
tion.  1  hat  instrument  marks  out  with  marvelous  clearness  ami  tore- 
si«ht  the  duties  assigned  to  each  of  the  three  branches  of  ( ;ovprnment 
therein  created:  within  its  own  ilomaiti  .-.uli  of  these  hranchos  is 
supreme,  the  executive  no  less  than  the  !<-isIative,  the  legislative  no 


362 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


N 


less  than  thr  judiciary,  and  the  judiciary  no  less  than  either  of  the 
other  two.  How  does  this  rule  apply  to  the  cases  now  before  \\s': 
The  legislature,  with  the  President  who  approved  the  bill,  have  an- 
niilled  the  treaties  t<t  the  extent  of  whatever  power  they  may  have  had 
m  the  premises,  wliich  is  all  the  jiower  possessed  by  the  United  States 
over  the  subject-mat-  r.  Do  subsequent  acts  of  the  Executive  alone 
under  these  circumstances,  aits  done  in  an  effort  to  procure  compen- 
sation for  injured  citizens,  statements  made  in  positions  assumed  in  a 
negotiation,  many  of  them  perhaps  taken  argumentatively,  others  (ler- 
haps  advanced  in  an  effort  to  reach  a  middle  ground  upon  which  botli 
parties  could  stand  and  which  would  result  in  substantial  advantajjc 
to  the  nation  and  its  individual  citizens ;  do  such  acts,  statementN  or 
positions  necessarily  bind  us  here? 

The  statute  which  gives  us  all  the  jurisdiction  wc  have  over  tin  ^e 
claims  requires  us  to  examine,  not  those  claims  which  the  liiitdl 
States  advanced,  but  those  claims  of  specified  classes  wliich  uin- 
"valid"  "upon  the  French  Government."  It  can  not  be  seriously  am- 
tended  that  because  tl-e  Executive  pressed  a  claim  that  the  claim  u,i- 
therefore  "valid"  as  between  t 'e  nations.  The  Act  clears  an>  >\'<.\U 
on  this  point,  if  there  could  be  any,  by  prescribing  the  test  wc  arc  i.^ 
apply  in  ascertaining  the  validity  of  a  claim:  that  test  is  "the  ruk-  -i 
law  municipal  and  international  and  the  treaties  of  the  llnitcd  St;!tt^ 
applicable  to  the  same." 

The  distinction  we  have  heretofore  made  must  be  emplia^vod 
between  the  position  and  jurisdiction  of  this  court  under  thi-  \rry 
cxcepti'inal  statute,  and  their  ]Kjsition  and  jurisdiction,  or  those  of  .  --v 
other  court  oi  the  United  States,  when  acting  under  general  1:iv.n 
whether  statutory  or  unwritten. 

Because  the  President  urged  a  claim  upon  France  it  did  not  ■ck-- 
sarily  become  as  between  France  and  the  United  States  a  vail 
claim.  The  rule  as  to  the  effect  of  Executive  decision  applies  as  \\A\ 
in  France  as  in  the  United  States;  France  resisting  the  claim  niav  cn- 
tend  with  equal  force  that  her  position  is  correct,  and  yet  oiu-  "i  tlic 
parties  to  the  dispute  must  be  wrong.  This  reJuctio  ad  c.hsurdinn 
seems  hardly  necessary,  and  yet  it  serves  to  illustrate  the  (li>tinctinn 
we  seek  to  make  clear  as  to  this  court's  peculiar  jurisdiction.  Sup 
pose  the  decision  of  the  Executive,  even  in  the  case  assumeil.  Ik-  bind- 
ing upon  the  judiciary  administering  the  law  within  the  United  .states 
and  the  authorities  do  not  go  tu  this  extent,  still  it  does  not  follow  that 


HOOPER  V.  UNITED  STATES 


.363 


such  a  decision  upon  any  of  these  claims  is  binding  upon  us  now.  We 
are  instructed  to  discover,  not  what  i  ■  Executive  believed  or  con- 
tended for  or  argued,  but  what  claims  were  in  fact  and  in  law  "valid" 
as  against  France,  and  valid  by  the  ruks  of  law,  municipal  and  inter- 
national, and  the  treaties. 

The  contention  has.  however,  other  asjx-cts,  whicii  must  have  serious 
tx.imination :  an<l  it  therefore  bicoims  iicccvvnn,-  to  see  what  was  the 
contention  of  this  (..ovcrnnunt  as  tn  the  treaty  rules  after  the  passage 
of  the  annulling  statute.  I"or  tlii>  purix>se  we  must  again  turn  to  the 
correspondence. 

It  is  well  to  iK-ar  in  min.l  that  the  (|uc>ti(.n  of  the  guaranty  had 
well  nigh  been  eliminated  from  discussion,  France  had  never  formally 
asked  its  enforcement;  on  the  coutrnry.  had  preferred  that  we  should 
remain  at  least  nominally  luutr.d  that  siie  might  reap  the  benefit  of 
our  food  supply.  Monroe  had  feared  that  too  strong  a  posifon  on  our 
part  might  bring  afxjut  a  demand  for  the  aid  pledged :  but  Pickering 
had  no  apprehension,  and  clearly  regarded  the  obligation  as  without 
practical  (lan;,'er.  I-ear  of  the  guaranty  hampered  our  officers:  but 
the  real  practical  ditf.culty  on  the  French  side  was  the  Jay  treaty;  on 
ours,  the  spoliations. 

Monroe  was  dismissed ;  I'inckney  was  not  received ;  the  ['iiickiu\ . 
.Marshall,  Gerry  mission  was  not  oflficially  recognized,  and  they  had 
nturned  home,  when,  in  (  lotoln-r.  IT*"?.  Mr.  Fickering,  Secretary  of 
-'^tate,  addressed  to  Messrs.  Ellsworth,  Davie,  and  \'ans  Murray,  the 
newly  appointed  ministers  to  France,  their  instructions,  in  which  under 
thirty  diflferent  heads,  concluding  with  seven  ultimata  he  set  forth  the 
position  of  the  I'nifed  States.  He  told  them  that  the  conduct  of 
France  would  well  have  justificfl  an  immediate  declaration  of  war,  but 
desirous  of  maintaining  peace  and  being  willing  to  leave  open  the  door 
of  reconciliation,  the  "I'nifed  States  contented  them.selves  with  pre- 
parations for  defense,  and  measures  calculated  f..  protect  their  com- 
merce" (Df*.  lOJ.  p.  .=;t'.l).  The  claims  for  ••sjioliation"  are  to  l)e 
advanced  immecli.Ttely  as  an  indi-pensalile  cnndition  of  a  treaty,  and 
all  captures  and  condemnations  are  to  be  deemed  "irregular  or  illeg.il 
when  contrary-  to  the  law  of  nations  generally  received  and  ncknowl- 
edped  in  Europe,  and  to  the  stipulations  in  the  treaty  of  amitv  and 
commerce  of  the  fith  of  February,  1778,  fairly  and  ingeiuiously  inter- 
preted, while  that  trc.ity  remained  in  force,  especiallv  when  made  and 
pronounced." 


MKXocorr  rkoiution  tbt  chaw 

(ANSI  ond  ISC  TEST  CHART  No   2) 


A 


/1PPLIED  IIVMGE    loc 

't\l   tost    Mg.'>    ".I'M! 

Ro(>'esl«'.    S««    Tof«  1*609        uS« 

1  '161    ♦«;      fi.WO      ^'^>or^ 

(7161    ^Se      S9«9   -  fa. 


364 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


In  this  instruction,  then,  Mr.  Pickering  draws  the  line  very  dis- 
tinctly between  the  staidard  of  demand  as  to  claims  arising  prior  to 
the  annulling  statute  and  those  founded  upon  acts  committed  subse- 
quent thereto.    Further  on  he  says  (ibid.,  p.  570)  : 

The  seventeenth  and  twenty-second  articles  of  the  commercial 
treaty  between  the  United  States  and  France  of  February  6,  1778, 
have  been  the  source  of  much  altercation  between  the  two  nations 
during  the  present  war.  The  dissolution  of  that  and  our  dthir 
treaties  with  France  leaves  us  at  liberty  with  respect  to  future 
arrangements;  with  the  exception  of  the  now  preferable  right 
secured  to  Great  Britain  by  the  twenty-fifth  article  of  the  treaty 
of  amity  and  commerce.  In  that  article  we  promise  mutually  tiiat 
while  we  continue  in  amity,  neither  party  will  in  future  make  anv 
treaty  that  shall  be  inconsistent  with  that  article  or  the  one  pre- 
ceding it.  We  can  not,  therefore,  renew  with  France  the  seven- 
teenth and  twenty-second  articles  of  the  treaty  of  1778.  Her 
aggressions,  which  occasioned  the  dissolution  of  that  treaty  have 
deprived  her  of  the  priority  of  rights  and  advantages  therein 
stipulated. 

He  speaks  of  the  "dissolution"  of  the  treaties  as  of  an  existing  fact, 
says  the  United  St:<tes  can  make  no  treaty,  that  is,  no  new  treaty 
inconsistent  with  the  Jay  treaty,  that  therefore  they  can  not  "renew"— 
note  the  word — certain  articles  of  the  French  treaty;  in  short,  the 
whole  in.struction  is  founded  upon  an  admission  at  least,  if  ntit  an 
assertion,  that  the  treaties  no  longer  were  in  force. 

The  newly-appointed  ministers,  acting  under  these  instructions, 
opened  negotiations  by  proposing  to  arrange,  first,  claims  of  citi/ens 
of  either  nation,  whether  founded  on  contract,  treaty,  or  the  law  of 
nations,  and  then,  to  stipulate  for  reciprocity  and  freedom  of  commer- 
cial intercourse  {ibid.,  p.  580).  The  French,  however,  thought  the 
first  object  of  negotiation  should  be  "the  determination  of  the  regula- 
tions and  the  steps  '  be  followed  for  the  estimation  and  indeniiiitKa- 
tion  of  injuries  for  uliich  either  nation  may  make  claim  for  it-elf.  or 
for  any  of  its  citizcn.s.  And  the  second  object  is  to  assure  the  execii- 
tioti  of  treaties  of  friendship  and  commerce  made  l)ctwccn  the  two 
nations"  tiliid.,  p.  581).  We  have  already  so  fully  considenil  the 
details  of  this  long  negotiation  (21  (..".  Lis.  340  et  seii.)  that  they  need 
not  now  be  rci>eated.  .\  careful  rereading  of  all  the  corre-poiidoiKc 
which  we  have  l)ccn  able  to  obtain  on  this  subject  but  coniirnis  .>iir 
previous  concliisiuii  tluit — 


HOOPER  V.  UNITED  STATES 


365 


Starting  under  their  instructions,  events  had  forced  the  minis- 
ters to  offer  unlimited  recognition  of  the  treaties  of  1778  coupled 
with  a  pecuniary  equivalent  to  extinguish  in  the  future  their  most 

retZI-nJ^rir"''  '''"  l^''  ''^'  ""^  ^'^"P'^^'  ^"^  ^^e  French, 
returning  to  their  original  ground,  said  that  no  indemnity  could 

be  granted  unless  the  treaties  were  recognized  without  qualifica- 
tion as  to  the  future,  and  this  they  said  with  the  avowed  object  of 
avoiding  the  payment  of  indemnity.  ' 

The  American  ministers  recognized  that  the  French  contention  had 
substantial  value,  so  much  so  that  they  offered  8,000.000  francs  to 
settle  it;  but  they  did  not  recognize  that  it  was  correct  in  fact  or  law 
or  that  the  annulling  act  was  without  effect.  On  the  contrary  they 
argued :  • 

A  treaty  being  a  mutual  compact,  a  palpable  violation  of  it  by 
one  party  did,  by  the  law  of  nature  and  of  nations,  leave  it  op- 
lonal  with  the  other  to  renounce  and  declare  the  same  to  Ix;  no 
longer    obligatory.  .     .      For    a    wrong    decision    it    would 

doubtless  be  responsible  to  the  injured  party,  and  might  give  cause 
for  war;  but  even  m  such  case,  its  act  of  public  renunciation  being 
an  act  within  its  competence  would  not  be  a  void  but  a  valid  act 
and   other   nations   whose   rights   might    thcrehv   be   l)eneficially 
affected  would  so  regard  it.     (Doc.  102.  p.  612.)' 

Finally,  the  second  article  of  the  treaty  of  1800.  as  signed  in  Paris 
e-xprcssly  stated  that  the  ministers  plenipotentiary  of  the  two  parties 
were  not  able  to  agree  respecting  either  the  treaties  or  indemnities 
These  points  then  remained  as  they  were  at  the  opening  of  the 
nep;otiation. 

We  fail  to  find  that  the  Fxecutive  did.  after  the  passage  .,f  the 
annulling  statute,  recogni.^e  the  existing  force  of  the  treaties  as  an 
mtcniational  obligation,  whatever  value  mav  have  In-en  .iccorded  to 
tlie  claim  of  France  that  one  party  was  without  power  to  ahroirate 

them. 

The  course  of  the  Fxecutive  in  the  long  contentions  with  I'rancc  is 
n.t  hin.ling  upon  us  now  under  the  jurisdiction  yiveii  bv  the  statute 
of  January.  188.r  That  statute  grants  a  very  peculiar  power.  imp,.ses 
i>i'"n  us  a  very  original  duty— that  of  examining  in  the  light  of  h^^■ 
municipal  and  international,  and  in  the  light  of  the  treatio.  the  validity 
-f  tin-  claims  of  this  (.ovemment  against  that  of  i>;,nce.  .Such  a 
praiit  of  jurisdictional  ixjwer  necessarily  negatives  any  binding  pre- 


m 


i 

f 


366 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


sumption  founded  upon  Executive  action.  The  President,  individ- 
ually and  through  the  Secretary  of  State,  expressly  and  repeatedly 
demanded  satisfaction  of  the  spoliation  claims.  This  was  of  course 
known  to  the  legislature  which  directed  us  to  investigate  these  very 
claims.  The  Congress  does  not  do  a  vain  act,  and  to  require  us  t.) 
examine  the  validity  of  claims  under  a  rule  of  law  which  presupposes 
them  to  be  valid  because  the  Executive  urged  them  in  diplomatic 
negotiation  would  be  vain.  The  intention  of  the  statute  is  that  \v<' 
shall  not  be  concluded  by  the  President's  position  in  these  negotiatioiiN 
but  shall,  under  the  standard  set  for  us,  inquire  afresh  as  to  the  claims' 
"validity"  against  France.  Even  if  this  were  not  so,  still  there  is 
nothing  'n  the  action  of  the  Executive,  after  the  act  of  1798.  tending 
to  show  an  intention  to  recognize  the  continuing  existence  of  the 
treaties.  On  the  contrary,  the  whole  argument  proceeded  upon  tlic 
opposite  hypothesis. 

Claimants  contend  that  not  the  act  of  1798  but  the  agreement  to 
expunge  the  second  article  of  the  treaty  of  1800  terminated  the  treaties 
of  1778.  The  rescission  of  that  article  undoubtedly  terminated  the  ili«- 
pute  as  to  the  existence  of  these  treaties  tnd  removed  that  dispute 
from  the  forum  of  international  discussion.  We  are  not  prepared  to 
admit  that  it  recognized  as  valid  the  contention  of  France  as  to  the 
treaties,  although  it  recognized  that  the  contention  had  substantial 
value.  .\  claim  may  he  admitted  to  have  value  for  purposes  of  negotia- 
tion or  compromise  without  an  admission  of  its  validity  in  fact  or  law. 
This  is  true  in  private  affairs,  and  is  especially  tr-ie  in  diploni.icv 
where  questions  of  national  pride,  tradition,  custom,  and  j^iqiie  have 
to  be  considered  most  carefully  and  often  are  of  most  serious  inijior- 
tance. 

Counsel  urge  that  France  insisting  the  treaties  remained  in  force 
should  be  bound  by  them,  and  they  make  the  apt  illustration  that  if 
the  two  nations  had  agreed  at  the  time  •.;pon  mutual  indemnities 
France  would  have  been  held  to  the  treaty  rules.  This  assmii]i!ioii  i- 
probahlv  correct.  France  having  obtained  the  benefit  she  <lesirt'il 
would  in  justice  be  ly^und  hv  the  corresponding  obligation.  "On! 
scntit  comuKJiliim  sciitiic  </;'  t  ct  onus."  But  that  is  not  tins  ca^l^ 
for  France  entirely  failed  to  secure  a  recognition  of  the  eontinuiiii,' 
forre  of  the  treaty. 

The  treaty  of  ]?P0  contained  a  provision  that  "propel  .y  oaptureii 
.tnd  not  yit  (ieti'iitivcly  eondemne<l  "  should  be  restored  uixin  prodnc- 


HOOPER  V.  UNITED  STATES 


367 


tion  alone  of  the  passport  of  1778.  These  captures  must,  in  almost 
all  mstances  if  not  m  all,  have  taken  place  subsequent  to  the  annulling 
statute,  and  it  is  urged  with  much  force  that  if  the  treaties  were  non- 
existent France  was  entitled  to  demand  the  proofs  required  by  the 
general  law  of  nations  as  she  expresslv  yielded  this  point  and  as 
to  these  cases,  agreed  to  abide  by  the  treaty  nde.  therefore  it  can 'not 
be  doubted  (urge  counsel)  that  had  these  claims  now  before  us  been 
taken  into  the  treaty  of  1800  they  would  have  been  subjected  lo  the 
same  standard. 

Perhaps  they  would  have  been.  France,  obtaining  treitv  r.- -ni- 
tioii,  would  have  been  bound  by  treat>-  rules :  but  this  did  not  occur  and 
as  France  faded  to  obtain  treaty  recognition  is  she  therefore  to  be 
bound  by  treaty  rules  because  in  one  instance  sue  made  a  special 
exception  in  specific  torms?  We  think  not.  A  treaty  chaiiges  the  law 
nf  nations  only  m  so  far  as  it  contains  provisions  to  that  effect  The 
parties  may  covenant  that  as  between  themselves  the  law  of  nations 
^^nall  not  apply  in  particular  instances;  except  in  those  instances  that 
la»v  remains  in   force. 

The  treaties  had  served  tl-.eir  purpose:  the  conditions  which  thev 
contemplated  had  changed.  Whatever  mav  have  been  the  justice  of 
French  complaints  of  our  course  with  Great  Britain,  and  whatever 
may  have  been  her  rights  under  the  circumstances,  still  she  had  =o 
invaded  the  rights  of  the  United  States  to  free  commerce  in  innocent 
cargoes  upon  the  high  seas,  that  a  case  was  presente.l  of  such  failure 
of  consideration,  an<l  of  such  r.ctive  infraction  of  the  treaties  that  this 
country  was  in  a  position  to  proclaim  them  ended. 

Froe  ships,  free  goods,  had  become  a  dead  letter.  The  passport 
ubich  the  treaty  prescribe.!  a.  a  sufficient  protection  was  rjisre-irde-l 
and  various  other  aggressions  upo„  the  shipping  of  tie  rn.te,r'^tate< 
were  committed:  aggressions  a.lmiltedly  forbirlden  bv  the  troatv 
provisions. 

We  .nre  of  opinion  that  the  circumst.inccs  justified  the  Tiiitcd  "^tatrs 
■n  annuihiig  the  treaties  of  17"^;  that  the  act  was  a  valid  one,  not  op!v 
as  a  municipal  statute,  but  a<  between  the  nations  ;  nn.l  that  thereafter 
ttie  compacts  were  ende.l.  We  fail  to  find  ,inv  agreenK'nt  i,v  France 
as  to  these  claim,  to  submit  t.)  the  treaty  rule>  alter  |ulv  7.  i7'»8  the 
treaties  not  being  recogni^d  by  us.  and  we  conchide'that  the  validity 
of  claims  not  expressly  nKutioned  in  the  treatv  of  1,X0(),  which  arose 
after  July  7,  179S,  is  to  I,c  ascertained  bv  the  principles  of  the  law  of 


368 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


nations  recognized  at  that  time,  and  not  by  exceptional  provisions 
found  in  the  treaties  of  1778. 

Insurance  to  cover  is  that  amount  of  insurance  which  in  case  of 
accident  will  entirely  reimburse  the  insured  for  his  loss.  It  includes 
not  only  the  value  of  the  property,  but  also  the  cost  of  the  insurance 
procured  to  protect  it. 

Phillips  in  his  work  on  insurance  thus  states  the  question  argued 
here  (§  1221): 

The  premium  on  the  premium  is  to  be  included  in  computing 
the  amcnt  to  be  insured  in  order  to  cover  the  interest  and  replace 
the  exact  value  of  the  subj^-t  in  case  of  total  loss. 

Some  of  the  claimants  ask  that  they  be  allowed  unpaid  premium? 
of  insurance  as  an  element  of  the  value  of  property  lost,  and  if  so 
that  such  premium  be  allowed  upon  the  theory  of  insurance  to  cover. 

The  able  arguments  and  briefs  of  counsel  for  claimants  on  these 
questions  have  been  listened  to  and  examined  with  great  care.  What- 
ever difficulty  we  might  find  were  the  matter  here  presented  for  tin 
first  time  is  removed  by  the  precedents  established  by  the  Supreme 
Court.  In  the  Anna  Maria  (2  Wharton,  325),  the  court  allowed  "the 
value  of  the  vessel  and  the  prime  cost  of  the  cargo  with  all  charges. 
and  the  premium  of  insurance,  where  it  has  been  paid,  with  interest. 
In  Malley  v.  ShaHuck  (2  Cranch.  458),  the  court  said  (citing  The 
Charming  Betsy) : 

In  pursuance  of  that  rule  the  rejection  of  the  premium  for 
insurance,  that  premium  not  having  been  paid,  is  approved :  hut 
the  rejection  of  the  claim  for  outfits  of  the  vessel  and  the  neces- 
sary advance  to  the  crew  is  disapproved.  Although  the  general 
terms  used  in  the  case  of  The  Charmiti};  Betsy  would  seem  to 
exclude  this  item  from  the  account,  yet  the  particular  (|uestion 
was  not  under  the  consideration  of  the  court,  and  it  is  conceived 
to  stand  on  the  same  principle  with  the  premium  of  the  insurance. 
if  actually  paid,  which  was  expressly  allowed. 

Following  the  Supreme  Court  we  shall  allow  premiums  of  insurance 
when  actually  paid,  and  not  otherwise. 

In  cases  heretofore  submitted  a  question  arose  as  to  the  cflFect  upon 
claimants'  rights  of  the  following  facts,  or  either  of  them,  should  tliey 
or  either  of  them  be  found  to  exist : 

A.  That  the  vessel  acted  as  a  privateer. 


HOOPER  V.  UNITED  STATES  3(39 

B.  That  the  vessel  possessed  the  license  or  authority  described  in 
either  the  Act  of  June  25,  1798,  or  in  the  Act  of  July  9,  1798,  author- 

2ri-98  '"'"'"  '*""'^'''  '"  *''°'^  ^'''  °'  '"  '^^  ^''  °*  May 

These  questions  were  ordered  to  be  and  have  been  reargued 
The  provisions  of  the  three  laws  above  recited  are  very  different  in 
effect  that  of  the  latest  date  being  the  one  n,ost  important  in  the  co- 
sideration  of  these  cases.  The  Act  of  May  28  ,  1  Stat.  L.  561)  "^o 
more  effectually  protect  the  commerce  and  coasts  of  the  United  States- 
empowered  the  President  to  give  certain  orders  to  the  a  Jd  vessetof 
the  nation  and  contained  no  allusion  to  vessels  owned  by  individuals. 
The  Act  of  June  2,   (Md.,  p.  572)  authorized  "the  defense  of  the 

aTdtla:"t^r'  '':  ;:'"'^'  "'^^^  ^^^-"^^  ^^-'^'^  depredations- 
and  to  that  end  allowed  the  commanders  and  cews  of  such  vessels  to 

oppose  and  defend  against  any  search,  restraint,  or  seizure"  attempted 

by  a  French  vessel,  to  "repel  by  force  any  assault  or  hostility"  on  the 

part  of  such  French  vessel,  to  "subdue  and  capture  the  same"  and  to 

retake  any  American  vessel  captured  by  the  French 

JA'11^"  "^■^"'''  I  ^u''^-'  P-  ^^^^  ^'''  '"  P"^^t^  ^^'"ed  vessels 
specially  commissioned  the  same  license  and  authority  "for  the  subdu- 
ing, seizing,  and  capturing  any  armed  French  vessel,  and  for  the 
recapture  of  the  vessels,  goods,  and  effects  of  the  people  of  the  United 

Sve-' Vs%^  xu  '""''^  "'''"''  °^  '^^  U"'^^d  States  may  by  law 
have  (§  2).  This  statute,  therefore,  authorized  private  armed  vessels 
to  take  any  arjiied  French  vessel  "found  within  the  jurisdictional  limits 
ot  the  United  States  or  elsewhere  on  the  high  seas"  (§1)  and  to 
recapture  American  vessels  taken  by  the  French.  (See  Acts'of  May 
iKs  and  June  25,  1798.)  ^ 

Many  of  the  vessels  whose  cases  are  before  us  carried  armament 
of  some  kind,  and  several  are  shown  to  have  had  a  special  license 
commission,  or  authority  issued  probably  bv  virtue  of  the  power  given 
the  President  in  the  last  two  acts  of  Congress. 

•  ^5  "'^l!'/"^  distinction  between  the  act  of  June  and  that  of  July  is 
m  this:  The  former  permitted  defense  onlv.  except  in  the  matter  of 
recapture,  while  the  latter  authorized  attack,'  but  attack  only  on  armed 
vessels.  Nowhere  in  the  statutes  is  there  any  permission  given  to 
molest  French  merchantmen,  although  France  was  then  engaged  in 
tne  acts  of  illegal  seizure  and  condemnation  from  which  the  spoliation 
claims  arose.     Defendants  urge  that  the  arming  of  a  merchantman 


I 


370 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


1^ 


and  the  presence  on  board  of  a  special  license  under  the  acts  cited 
destroyed  any  right  of  recovery  as  against  France  and  consequently 
as  against  the  United  States. 

We  have  held  {Gray's  Case,  21  C.  CIs.  375)  as  to  the  relations 
between  the  two  countries  during  the  period  in  question  that  "no  such 
war  existed  as  operated  to  abrogate  treaties,  to  suspend  private  right-, 
or  to  authorize  indiscriminate  seizures  and  condemnations;  that,  in 
short,  there  was  no  public  general  war,  but  limited  war,  in  its  natur. 
similar  to  a  prolonged  series  of  reprisals."  There  was  not  what 
Wheaton  calls  "a  perfect  war,"  but  a  war  '"limited  as  to  places,  per- 
sons, and  things" :  the  Congress  authorized  hostilities,  but  only  on  the 
high  seas  or  within  the  jurisdictional  limits  of  the  United  States,  and 
then  only  by  certain  specified  vessels  upon  certain  specified  vessel?. 
As  far  as  Congress  authorized  and  tolerated  it  so  far  might  we  proceeil 
in  hostile  operations,  and  the  word  "enemy"  goes  the  full  length  of 
this  qualified  war  and  no  further  (21  C.  CIs.  371).  The  hostilities 
were  confined  on  the  side  of  the  United  States  to  attack  on  French 
armed  ships  and  to  recapture  of  our  own.  The  capture  of  enemy  mer- 
cantile shipping  is  an  important  mark  of  a  state  of  war,  one  of  its 
principal  incidents,  and  it  is  significant  of  the  relations  between  the 
two  Governments  that  not  a  movement  was  made  by  Congress  or  the 
Executive  in  this  direction. 

A  privateer  is  an  armed  vessel  belonging  to  one  or  more  private 
individuals,  licensed  by  Government  to  take  prizes  from  an  enemy: 
its  authority  in  this  regard  must  depend  altogether  upon  the  extent  of 
the  commission  issued  to  it,  and  is  qualified  and  limited  by  the  law- 
under  which  the  commission  is  issued.  (The  Thomas  Gibbons.  8 
Cranch,  421.) 

Letters  of  marque  and  reprisal  may  theoretically  issue  in  time  of 
peace  (articles  of  Confederation  signed  1778,  art.  9),  as  they  form  a 
"mode  of  redress  for  some  specific  injury  which  is  considered  to  be 
compatible  with  a  state  of  peace  and  permitted  by  the  law  of  nations" 
(Kent,  vol.  1,  p.  61).  The  commission  authorizes  "the  seizure  of  the 
property  of  the  subjects  as  well  as  of  the  sovereign  of  the  offendin!:; 
nation  and  to  bring  it  in  to  be  detained  as  a  pledge,  or  disposed  of 
under  judicial  sanction  in  like  manner  as  if  it  were  a  process  of  dis- 
tress under  national  authority  for  some  debt  or  duty  withheld"  (ibid.). 
Speaking  very  technically,  c  '  ♦er  of  marque  is  merely  a  permission 
to  pass  the  frontier,  while  a  k^ter  of  reprisal  authorizes  a  "taking  in 


HOOPER  V.  UNITED  STATES 


371 


return,  a  taking  by  way  of  retaliation,  a  captio  rei  unius  in  alterius 
sattsfacHonem.  The  colloquial  use  together  of  the  two  names,  letter 
of  marque  and  letter  of  reprisals,  leads  sometimes  to  misunderstand- 
ing as  to  the  differing  effect  of  each,  one  being  a  simple  authority  to 
depart,  the  other  an  authority  to  seize  property  in  compensation  for 
an  injury  committed. 

The  licenses  or  commissions  of  1798  contained  no  hint  of  intended 
reprisals,  for  no  authority  to  seize  a  French  merchantman  is  contained 
in  them,  although  the  French  had  long  been  capturing  our  commercial 
manne.  There  was,  however,  express  authority  to  seize  armed  vessels 
and  to  recapture  American  vessels;  that  is,  in  its  essence,  authoritv  to 
defend,  not  to  attack. 

Within  the  limits  prescribed  by  the  Congress  there  was  war;  limited 
imperfect  war.  not  general  public  war.  but  war  complete  as  to  the 
vessels  engaged  in  it  to  the  extent  only  of  the  powers  given  by  the  Con- 
gress. Following  in  the  path  marked  out  hv  the  Supreme  Court  in 
the  prize  cases  which  came  before  them  during  this  period  and  of 
which  Bos  V.  Tingy  is  a  fair  exaniple.  we  are  led  to  the  conclusion 
that  where  a  private  vessel  was  fitted  for  the  purpose  of  attacking 
armed  French  vessels,  and  of  recapturing  American  vessels  seized,  she 
fell  withm  the  rules  of  war,  and  if  captured,  became  legitimate  prize 
The  relations  of  the  two  nations  being  strained  to  hostilities  within 
certain  distinctly  defined  bounds,  within  those  bounds  the  active  agents 
of  either  Government  were  subject  to  the  rules  of  war,  and  vessels 
intending  to  seize  must  submit  to  seizure. 

It  does  not.   however,   follow  that  everv  vessel   having  a   special 
license  under  the  acts  of  1798,  or  every  vessel  having  some  armament 
on  board,  falls  within  this  rule.     Long  within  the  memor^■  of  men 
now  living,  many  portions  of  the  ocean  since  freelv  opened  to  com- 
merce were  mfested  by  pirates  who  boarded  peaceful  merchantmen 
plundeied  the  vessels,  and  murdered  the  crews,  or  dragsred  them  to 
the  horrors  of  sla.ery.     The  literature  relatiii-  to  the  earlv  part  of 
the  century  is  filled  with  anecdotes  based  upon  the  outrages  of  such 
freebooters,  and  the  heroic  deeds  of  tho^c  sent  out  l.v  the  different 
Covernnients   to   capture  or  destroy   them.     Wssd^   temptin-  these 
^vaters  found  it  advisable  to  carry  some  armament,  so  that  failing 
efficient  convoy,  or  in  case  of  other  accident,  they  might  be  prepared 
to  cope  on  comparatively  equal  terms  with  these  robbers  of  the  sea. 
At  the  particular  period  we  now  are  considering,  to  tlie  drincrer  from 


372 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


pirates  in  some  parts  of  the  world  was  added  the  danger  from  French 
privateers  who  acted  in  so  illegal  and  unjustifiable  manner  as  to  call 
from  Lord  Stowell  this  opinion : 


It  has  certainly  been  the  practice  of  this  court,  lately,  to  grant 
salvage  on  recapture  of  neutral  property  out  of  the  hands  of  the 
French,  and  I  see  no  reason  at  the  present  moment  to  depart  from 
it.  I  know  perfectly  well  that  it  is  not  the  modern  practice  of  the 
law  of  nations  to  grant  salvage  on  recapture  of  neutral  vessels, 
and  upon  this  plain  principle,  that  the  liberation  of  a  clear  neutral 
from  the  hand  of  the  enemy  is  no  essential  service  rendered  to  him, 
inasmuch  as  that  same  enemy  would  be  comi)elled  by  the  tribunals 
of  his  own  country,  after  he  had  carried  the  neutral  into  port,  to 
release  him,  with  costs  and  damages  for  the  injurious  seizure  and 
detention.  This  proceeds  upon  the  supposition  that  those  tribun- 
als would  duly  respect  the  obligations  of  the  law  of  nations:  a 
presumption  which,  in  the  wars  of  civilized  nations,  "ach  bellig- 
erent is  bound  to  entertain  in  their  respective  dealings  with  neu- 
trals. But  it  being  notorious  to  all  Europe,  in  the  present  war, 
that  there  has  been  a  constant  struggle  maintained  between  the 
governing  powers  of  France,  for  the  time  being,  and  its  maritime 
tribunals,  which  should  most  outrage  the  rights  of  neutral  prop- 
erty— the  one  by  its  decrees,  or  the  other  by  its  decisions — the 
liberation  of  neutral  property  out  of  their  possession  has  been 
deemed,  not  only  in  the  judgment  of  our  courts,  but  in  that  of 
neutrals  themselves,  a  most  substantial  benefit  conferred  upon 
them,  in  a  delivery  from  danger  against  which  no  clearness  and 
innocence  of  conduct  could  afford  any  protection.  And  a  salvage 
for  such  service  has  not  only  been  decreed,  but  thankfully  paid. 
ever  since  these  wild  hostilities  have  been  declared  and  practiced 
by  France,  against  all  acknowledged  principles  of  the  law  of 
nations  and  of  natural  justice.  When  these  lawless  and  irregular 
practices  are  shown  to  have  ceased,  the  rule  of  paying  salvage  for 
the  liberation  of  neutral  property  must  cease  likewise. 

No  proof  is  offered  that  the  maritime  tribunals  of  France  have, 
in  any  degree,  corrected  either  the  spirit  or  the  form  of  their 
proceedings  respecting  neutral  property  generally;  and,  there- 
fore, I  shall  not  think  myself  authorized  to  depart  from  the  prac- 
tice that  has  been  pursued,  of  awarding  a  salvage  to  the  captors. 
(The  Onskan,  2  Robinson,  pp.  300,  301.) 

And  later  he  said: 

It  is  certainly  true  that  the  standing  doctrine  of  the  court  ha? 
been  that  neutral  property,  taken  out  of  the  possession  of  the 


HOOPER  V.  UNITED  STATES 


373 


enemy  is  not  liab  e  to  salvage.  It  is  the  doctrine  to  which  the 
court  has  myanably  adhered  till  it  was  forced  out  of  its  course 
by  the  notorious  irregularities  of  the  French  cruisers  and  of  the 
French  Government,  which  proceeded  without  any  pretense  of 
sane  ion  from  the  law  of  nations,  to  condemn  neutral  property 
On  these  grounds  it  was  deemed  not  unreasonable  by  neutrals 
themselves  that  salvage  should  be  paid  for  a  deliverance  from 
Jnn"?.''?."'"-    ^^'  '■"'"  °^*"'"^^  ^^^'y  i"  'he  war,  and  has  con 

li.?J  ^  the  French  proceedings,  and  that  we  are  now  to 
acknowledge  a  sort  of  return  of  "Saturnia  re^na."  Vhis  court  is 
rh.n'r;T/?'u'"  ^^^''^f^ctory  manner,  that' any  such  beneficial 
change  has  taken  place  in  the  administration  of  prize  law  in  the 
tribunals  of  France;  and,  therefore,  it  will  continue  to  make  the 
same  decree  till  the  instructions  of  the  superior  court  shall  estab! 
hsh  a  different  rule  (Eleonora  Catharina,  4  Rob.  157.  See  also 
Talbot  V.  Seeman.  1  Cranch,  1.) 

.  ^"  *!,^"'^  of  Mexico  the  danger  of  seizure  by  small  vessels,  tech- 
nically French  privateers,  but  actually  so  irresponsible  to  governing 
power  as  to  be  in  form  only  superior  to  freebooters,  made  the  posses- 
sion of  some  armament  by  an  innoc  it  trader  a  matter  of  wise  pre- 
caution, if  not  of  necessity,  especiall,  as  in  some  instances  the  danger 
from  the  French  tribunals  was  nearly  as  great  as  from  the  privateers 
We  are  told,  for  example,  that  vessels  were  condemned  by  such 
tribunals  because  the  ship's  compass  had  an  English  brand,  because  the 
cooking  utensils  were  of  English  manufacture,  or  because  the  vessel 
was  destined  to  an  English  port.  The  Secretary  of  State  thus  charac- 
terized the  situation: 


Amencan  property  had  even  been  taken  when  -.       lei-  ov  rts 

without  any  pretense,  or  no  other  than  that  thc^   wan^  \t 

the  same  time  their  cruisers  are  guilty  of  wanton  an,l  arous 

excesses,  by  detaining,  plundering,  firing  at,  burning,  anri    i  tress- 
ing  American  vessels. 

The  acts  of  the  French  privateers  were  so  illegal  as  to 
tized  as  "piracies"  both  by  Mr.  Pickering  and  in  the  two 
Councils  of  France  (Doc.  102,  p.  410). 

As  early  as  June,  1793.  Morris  complains  "of  the  plundering         nr 
ships,  of  which  complaints  are  daily  made  to  me  and  which  the  ;..      nt 
Government  of  the  country  is  too  feeble  to  prevent"  (ibid    , 
and  he  writes  to  the  French  minister  "that  it  will  be  very  difficub 


i 


374 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


perhaps  impossible,  to  prevent  your  privateers  from  coirmitting  illegal 
and  outrageous  aas  as  long  as  they  are  permitted  to  bring  into  your 
ports  all  the  American  vessels  laden  with  articles  of  food  for  coun- 
tries at  war  with  France"  (ibid.,  p.  49).  Later  he  infcms  the  Secre- 
tary of  State  that  "in  the  present  state  of  the  countn,'  the  laws  are 
but  little  respected ;  and  it  would  seem  as  if  pompous  declarations  of 
the  rights  of  man  were  reiterated  only  to  render  the  daily  violation  oi 
them  more  shocking"  (ibid.,  p.  52).  In  October  he  says  "the  courts 
chicane  very  much  here,"  and  he  speaks  of  their  proceedings  as  "iniqui- 
tous" (ibid.,  p.  67).  In  December,  1796  (ibid.,  p.  151),  Major  Mount- 
florence,  in  his  general  report  as  to  American  commercial  interests  in 
France,  says  that  on  the  27th  of  the  preceding  April  power  had  been 
given  to  the  tribunals  of  commerce  in  every  port  of  France  to  take 
cognizance  in  the  first  instance  of  every  matter  relative  to  captures 
at  sea,  with  an  appeal  to  the  civil  tribunals  of  the  different  depart- 
ments, and  with  a  reference  in  certain  instances  to  the  minister  uf 
justice. 
He  adds: 

The  tribunals  of  commerce  are  chiefly  composed  of  merchants, 
and  most  of  them  are  directly  or  indirectly  more  or  less  interested 
in  the  fitting  out  of  privateers,  and,  therefore,  are  often  parties 
concerned  in  the  controversies  they  are  to  determine  upon. 

In  illustration  he  cites  the  condemnation  of  the  Royal  Captain,  say- 
ing that  most  of  the  "judges  were  concerned  in  the  capturing  privateer." 
In  January,  1797,  Mr.  Pickering  wrote  to  Mr.  Pinckney  as  follows : 

The  commissioners  and  special  agents  of  the  French  Republic 
in  the  West  Indies  are  destroying  our  commerce  in  the  most 
wanton  manner.  They  have  issued  orders  for  taking  all  .American 
vessels  bound  to  or  from  English  ports — not  those  only  which  the 
English  occupy  in  St.  Domingo,  but  <:hose  of  their  own  islands. 
They  condemn  without  the  formality  of  a  trial.  These  orders 
appear  from  the  information  I  have  received  to  have  been  issued 
in  consequence  of  letters  from  Mr.  Adet,  who,  you  will  see  in  his 
note  of  November  15,  said  the  French  armed  vessels  were  not 
merely  to  capture  American  vessels,  but  to  practice  vexations  t<i- 
wards  them ;  and  who,  I  am  further  informed,  wrote  to  the  com- 
missioners that  they  could  not  treat  the  American  vessels  too 
badly.  This  state  of  things  can  not  continue  long.  It  makes  little 
difference  whether  our  vessels  go  voluntarily  to  French  ports  or 
are  carried  in  as  prizes.    In  the  latter  case  they  condemn  without 


HOOPER  V.  UNITED  STATES 


375 


ceremony,  and,  in  the  former,  they  forcibly  take  the  cargoes,  here- 
tofore with  promises  of  payment,  which  they  generally  broke; 
and  now,  I  am  told,  without  even  deigning  to  give  their  faithless 
promises  {ioid.,  p.  154). 

In  the  following  February  he  writes  again  to  Pinckney,  saying  (ibid. 
p.  154)  : 

The  spoliations  on  our  commerce  by  French  privateers  are  daily 
increasing  in  a  manner  to  set  every  just  principle  at  defiance.     If 
their  acts  were  simply  the  violation  of  our  treaty  with  France  the 
injuries  would  be  comparatively  trifling,  but  their  outrages  extend 
to  the  capture  of  our  vessels  merely  because  going  to  or  from  a 
British  port.     Nay,  more,  they  take  them  when  going  from  a 
neutra    to  a  French  port.     In  truth,  there  is,  in  a  multitude  of 
cases,  little  difference  whether  our  vessels  are  carried  in  as  prizes 
or  go  voluntarily  to  the  French  ports  in  the  islands  for  the  pur- 
poses of  traffic;  the  public  agents  take  the  cargoes  bv  force  and 
lix  their  owi,  terms,  giving  promises  of  distant  payment,  which 
are  seldom  duly  performed.    With  regard  to  the  vessels  carried 
in  as  prizes,  the  agents  and  tribunals  of  the  French  Government 
act  m  concert  with  the  privateers.    The  captured  are  not  admitted 
to  defend  their  property  before  the  tribunals;  the  proceedings  are 
wholly  r.r  ^ar/f.    We  can  account  for  such  conduct  onlv  on  the 
principle  of  plunder,  and  were  not  the  privateers  acting  under  the 
protection  of  commissions   from  the   French   Government    thev 
would  be  pronounced  pirates.     Britain  has  furnished  no  prece- 
dents of  such  abominable  rapine. 

In  April,  he  writes  again  (ibid.,  p.  164)  that  "the  depredations  of 
the  French  in  the  Vest  Indies  are  continued  with  increased  outrage, 
and  we  have  advices  of  captures  and  condemnations  in  Europe  which 
apply  to  no  principle  heretofore  known  and  acknowledged  in  the  civ- 
ilized worid."    (See  also  ibid.,  pp.  166,  171,  173.  174,  177.) 

Citations  of  this  kind  might  be  multiplied,  but  it  seems  useless  to  do 
so,  as  the  situation  is  familiar  history.  Certainly,  under  these  circum- 
stances, some  attempt  at  defense  was  natural  and  excusable,  if  not 
justifiable. 

Judges  "are  not  to  shut  their  eyes  to  what  is  generally  passing  in 
the  world"  (Blatchford's  Prize  Cases,  p.  448).  nor  as  to  what  "has 
already  taken  place.  In  danger  from  native  pirates,  in  danger  from 
French  privateers  often  as  irrespiinsihle  (C:L''hings  Administrator, 
22  C.  Cls.  1),  the  mere  possession  of  some  armament  by  a  merchantman 
is  devoid  of  marked  significance.    It  is  improbable  that  any  important 


ill 


376 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


venture  was  sent  to  sea  without  an  effort  on  the  part  of  the  ship- 
owner to  protect  his  property  and  that  laden  on  his  vessel;  cannon 
enough  or  muskets  enough  he  would  put  on  board  to  give  his  crew 
a  fair  chance  of  escape  from  a  small  force.  The  statute,  however, 
said  that  no  armed  merchantman  should  receive  a  clearance  or  permit, 
or  be  suffered  to  depart  unless  the  owners  and  the  master  gave  bond 
conditioned,  among  other  things,  that  the  vessel  should  not  commit 
any  depredation,  outrage,  unlawful  assault,  or  unprovoked  violence 
upon  the  high  seas  against  the  vessel  of  any  nation  in  amity  with  the 
United  States  (1  Stat.  L.,  p.  5"3).  Under  this  act  no  vessel  having 
any  armament  could  proceed  to  sea  without  bond  first  given,  and  this 
bond,  being  coupled  in  the  acts  with  the  issuance  of  special  orders 
or  license,  what  more  natural  than  for  the  innocent  merchantman, 
desiring  only  safe  transit  of  a  commercial  venture,  to  receive  in  return 
the  commission  w'lich  the  act  provided  should  be  given  him.  The  Act 
of  July  9  (ibid.,  p.  578)  contains  a  similar  provision,  and  the  result 
of  both  statutes  is  that  no  private  vessel  carrying  armament  could 
proceed  to  sea  without  bond  filed  in  return  for  which  a  commission 
might  be  issued 

In  our  view  ol  the  case  it  is  vital  to  note  the  distinction  between 
armament  for  protection  simply  and  armament  for  attack  upon  armed 
vessels  or  for  attack  upon  captured  American  vessels  necessarily  in 
charge  of  prize  crews.  .\  privateer  is  maintained  for  profit ;  the  ven- 
ture is  most  speculative  in  its  nature,  bringing  large  returns  for  <;icat 
risk.  Given  the  right  to  prey  upon  the  mercantile  marine,  great  arma- 
ment is  not  necessary,  as  combat  may  be  avoided  by  speed  and  quick- 
ness in  mana-uvre.  The  privateering  authorized  by  the  acts  of  1798 
was  of  no  such  nature ;  not  a  prize  could  be  taken  without  conflict,  for 
only  armed  vessels,  or  vessels  in  charge  of  prize  crews,  could  be  seized; 
not  a  merchantman  was  allowed  to  be  molested.  A  vessel,  then,  fitting 
out  under  the  acts  of  1798  for  the  purpose  of  waging  the  limited  hos- 
tility therein  permitted,  must  have  been  prepared  for  battle ;  must  have 
been  ready  to  wage  war.  She  could  not  mount  a  few  gims  and  carry 
a  few  dozen  muskets,  with  a  small  crew,  when  the  success  of  her 
voyage  depended  upon  the  number  of  well-defended  vessels  she  should 
send  into  port  for  condemnation.  A  vessel  intended  to  act  aggres- 
sively imder  the  laws  of  1798  would  have  to  fight  for  every  doll.ir 
brought  into  the  pockets  of  the  owners,  master,  and  crew,  and,  know- 
ing this,  would  proceed  to  sea  with  an  equipment  sufficient  for  thf 
very  serious  work  contemplated. 


HOOPER  V.  UNITED  STATES  377 

One  of  the  vessels  holding  a  commission  under  the  acts  of  1798  was 
a  schooner  of  about  111  tons,  old  measurement.  She  had  a  ere  wo 
seven  men.  earned  what  was  called  a  letter  of  marque,  two  Ln  and 
a  cargo  of  merchandise ;  she  was  duly  cleared  on  a  trldi^g  vo^g"  wkh 
.nstrucfons  to  the  master  as  to  the  sale  of  the  cargo  and  tlpur'cra  e 
o    a  return  venture      Such  a  vessel  as  this  could  not  have  bee,  tr 

vessels  defended  by  French  prize  crews.  Seven  men,  all  told  were  barelv 
enough  to  nav.gate  the  schooner;  aside  from  the  master,  th  ^e  were  bm 
.  ree  o  a  watch,  and  on  an  emergency  it  is  e.xtremely  d^ubtfulXh 
the  total  force  was  sufficient  to  handle  the  two  guns  and  the  v^ssd  a 
the  same  t.me.    Possibly  some  defense  might  have  been  made  agains 
a  boat-load  of  p.rates  putting  off  from  the  shore  while  the  schoone 
lay  becalmed  near  ,t.  but  it  is  not  within  the  bounds  of  possib  1  ITa 
such  a  vessel,  w.th  so  slight  a  crew  and  so  insignificant  anar    a  „ent 
should  contemplate  attack  upon  a  well-defendefvessel         '"""""''' 

.nH  277.'  '°''^  '^"'  ^^^  '"^''^'  °^  ^'^'-^^  '°""^g-.  carrying  6847  men 

March  ..  1/99.    The  average  tonnage  per  vessel  was  then  185  tons 

1^  average  crew  16.  and  the  average  armament  7  guns.    On  the  otl"e^ 

hand    one  Government  armed  vessel   (taken  for  Illustration     of   iS 

earned  the  same  armament  and  crew.    So  far  as  has  yet  appeareiTo 
F:;n"c7:r'  '""''  merchantman  made  a  single  ca'ptJire'f       't 
French,  and  we  are  assured  that  no  such  capture  was  made      So    ar 
as  concerns  the  cases  now  before  us.  it  would  be  practical  yLpo^sib 
or  such  a  capture  to  be  made,  for  most  of  the  vessels  were  sn^l     „ 
they  were  manned  only  for  ordinary  navigation  and  no.  for  war   J 
an  armament  .nsufficient  to  cope  with  organized  militarv  fo"e    Vdl 
seven  nor  even  sixteen  men  is  a  crew  for  a  vessel  in  e  I'd  to  attack 
French  armed  ships  or  to  recapture  those  manned  by  pr   e  cr   v     am 
no  merchantman  with  so  small  a  crew  and  laden  with' v    uab    ".  go 
would  undergo  such  risk.  '"««uic  cargo 

,mln^'  ^""T'"'  '^''^  "°'  contemplate  the  employment  i„  attack  of 

n      -^'J       L  ^^^  '^"''  '''°"''l  ^^  ^'"o'^'^'l  in  case  "the  vessel  be 

prnvded  w.th  more  than  one  h.mdred  and  fifty  men."  from  which  a^ 
■nference  may  not  unfairly  he  drawn  that  not'far  f;o.  o:e  h  r  d 
and  fifty  was  considered  a  fair  equipment  for  a  vessel  designed  to 


378 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


fight.  We  have  seen  that  the  Government  war  vessels  about  equiva- 
lent in  tonnage  to  the  average  licensed  merchantman  carried  about  one 
hundred  and  forty  men,  and  coupling  this  fact  with  the  act  of  Con- 
gress we  reach  the  result  already  indicated  by  common  sense,  that 
Congress  had  in  mind,  so  far  as  privateers  were  concerned,  fighting 
ships — those  able  to  attack  a  French  privateer  with  reasonable  hope  ')l 
success,  and  not  vessels  with  insignificant  crew  and  armament,  bou  i! 
on  a  trading  voyage,  and  provided  with  those  slight  means  of  defence 
which  were  at  the  time  ordinarily  carried  by  merchantmen  for  pro- 
tection. 

That  armament,  when  carried  by  strictly  commercial  vessels  bound 
upon  trading  voyages,  was  intended  for  defense  is  shown  by  the  report 
of  the  House  Committee,  made  January  17,  1799  (American  State 
Papers,  Naval  Affairs,  vol.  1,  p.  69).    They  said: 


Your  committee  begs  leave  to  report  further,  that  about  the 
time  of  the  sailing  of  our  ships  of  war,  and  before  the  merchant 
ships  were  permitted  to  arm  for  their  defense,  our  trade  was  in 
such  jeopardy  at  sea  and  on  the  coast  from  French  privateers, 
that  but  few  vessels  escaped  them ;  that  ru'n  stared  in  the  face  all 
concerned  in  shipping,  and  that  it  was  difficult  to  get  property 
insured. 

Hamilton,  then  Secretary  of  the  Treasury,  officially  expressed  the 
opinion  of  his  Government  as  to  armed  merchantmen  in  his  circular 
of  August  4,  1793,  as  follows: 


The  term  privateer  is  understood  not  to  extend  to  vessels  armed 
for  merchandise  and  war,  commonly  called  with  us  letters  of 
marque,  nor,  of  course,  to  vessels  of  war  in  the  immediate  service 
of  the  Government  of  either  of  the  powers  at  war. 

Twelve  days  later  Jeflferson.  in  an  instruction  to  Morris  as  to  the 
English  ship  Jane,  which  Genet  had  requested  might  he  ordered  to 
sail,  a  request  authorized,  Genet  contended,  by  the  twenty-second 
article  of  the  treaty*  of  commerce,  said  CDoc.  102,  p.  SSt : 

The  ship  Jane  i«  an  English  merchant  vessel,  employed  in  the 
commerce  between  Jamaica  and  these  States.  She  hrnnglit  here 
a  cargo  of  produce  from  that  island,  and  was  to  take  away  a 
cargo  of  flour.  Knowing  of  the  war  when  she  left  Jamaica,  and 
that  our  coast  was  lined  with  small  French  privateers,  site  armed 
for  her  defense,  and  took  one  of  those  commissions  tisuallv  called 


HOOPER  V.  UNITED  STATES  3;^ 

chant  vessel  is  not  a  orivatefr?     Tho»  »k       t.     u     , 

defend  herself  in  tim»    f  •      ,    ^^  though  she  has  arms  to 

uciciiu  nerseii  ni  time  of  war   in  the  rniirc«  ,->f  u^-  i 

vvhat  she  had  acquired  by  commerce.     Were  the  merchant  veV 

must  be  suppressed   our  produce  remain  on  oThand"    or  Ttleast 
that  great  portion  of  it  which  we  have  not  vessels  to  cam  awav 

S^^  v:^:"  ^^  -'  comp,j:^l^:r?  ^^ixn-n-s 

trib  inal  of  ""  '     "'*'  "'^''"'  "■'''•  *"  •^""^'  ^799.  tried  bv  the 

tnbunal  of  commerce  sitting  at  Bayonne.  Several  grounds  were  ^elie.I 
upon  by  the  captors  as  authorizing  condemnation,  all  of  which  were 
overruled  by  the  tribunal.    Among  thetn  was  the  following: 

Is  the  letter  of  marque,  of  which  the  vessel  was  the  beirer  ...ff 
cent  to  cause  it  to  be  considered  as  an  enemy?  ' 

This  question  was  thus  answered: 

Considering  the  point  relative  to  the  letter  of  marque  of  which 

doubt  IS  not  ..gnorant  of  the  deliverv  of  like  letters  bv  the  Covern 
"lent  of  the  L  n.ted  States  to  the  vessels  of  the  said  Uifed  dates' 
"or  of  the  terms  in  which  these  letters  are  conceived.    That  no w 

reirf^Z'^'-^'''"'''  ''"''  '»  '^''^  ""»  ''«"  manifested  that 
regankc   tins  orcumstance  and  tlie  act  of  Congress  of  the  UnL 
States  of  the  month  of  July.  1798.  eitlicr  as  a  declar.  ion  of  "  -ir 

lative  body  a  law  declaring  the  French  nation  to  be  in  a  state  of 
war  with  the  I  nited  States  of  \orth  America.     That  a  s ta  e  o 
war  can  not  be  established  or  declared  without  a  law  of  the  legi- 


alj 


380  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

lative  body.  That  it  does  not  belong  to  the  tribunals  to  take  notica 
of  any  step  that  a  foreign  power  may  take  as  constituting  a  state 
of  war  between  France  and  itself. 

That  the  condemnation  demanded,  of  the  said  ship  Fame  and 
f  her  cargo  because  of  the  said  letter  of  marque,  can  not  be 
m  '<kd  upon  any  law,  and  can  not  and  ought  not  to  be  pro- 
nounced. The  said  ship  besides,  not  having  opposed  any  resist- 
ance, suffered  itself  to  be  visited  at  the  summons  which  was  made 
to  it  by  the  said  privateer.  There  is,  then,  no  occasion  to  accede 
to  the  demand  of  the  captors  upon  this  point.  (See  Record  in 
case  Nathaniel  Richardson,  executor  of  Joshua  Richardson  et  al. 
V.  The  United  States,  No.  5343.) 

This  case  was  appealed  to  the  civil  tribunal  of  the  department,  and 
thence  to  the  council  of  prizes,  which  latter  tribunal,  on  the  13th  De- 
cember, 1800,  released  the  vessel  and  cargo  in  accordance  with  the 
judgment  of  the  two  lower  tribunals. 

The  Pegou  carried  ten  cannon.  She  was  provided  with  muskets  and 
munitions  of  war. 

The  law  officer  of  the  French  Government  having  charge  of  the  case 
made  the  following  points  among  others  (see  Pistoye  et  Duverdy, 
Prises  Maritimes,  vol.  2,  p.  51) : 

It  is  not  enough  to  have  or  carry  .irms  to  deserve  the  reproach 
of  being  armed  for  war  (p.  52). 

War  armament  is  for  purely  offensive  use.  This  is  shown  when 
there  is  no  object  in  the  armament  but  attack,  or  at  least  when 
everything  tends  to  prove  that  such  is  the  principal  object  of  the 
enterprise.  .  .  .  But  defense  is  a  natural  right,  and  means  of 
defense  are  legitimate  in  sea-voyages  as  in  all  other  occurrences 
perilous  to  life.  A  vessel  having  but  a  small  crew,  whose  cargo 
was  considerable,  was  evidently  intended  for  commerce,  not  for 
war.  The  arms  found  in  this  vessel  were  not  intended  for  vio- 
lence or  hostility,  but  to  prevent  them  ;  not  to  attack,  but  to  defend. 
The  point  as  to  war  armament,  then,  .seems  to  me  unfounded. 

The  Pegou  was  discharged  with  damages  to  her  captain. 

In  the  case  of  the  Friend,  of  Boston,  a  letter  of  marque  had  been 
found  on  board ;  the  vessel  was  armed  for  defense ;  there  was  no  resis- 
tance; summons  from  the  privateer  was  ol)eyed,  and  he  master's  in- 
structions directed  him  to  avoid  acts  of  offense  and  to  be  prudent.  The 
commissaire  of  the  Government  urged  that  these  were  not  reasons  for 
capture.  The  vessel  was  condemned  on  other  grounds.  ( Pistoye  et 
Duverdy,  vol.  1,  p.  501.) 


HOOPER  V.  UNITED  STATES  jgj 

Further,  Article  IV  of  the  treatv  nf  lam      u-  u      , 
anH  "„n:.r,„»^"  ,.  ^       '^"^'  w'"*^^  '"^'ates  to  "armed" 

t,ons  from  the  President  as  to  defence  only,  except  that  trlcalre' 
o    Amer.can  vessels  was  permitted.    The  second  act  a  lowed  capture 
of  armed  Frenchmen.     In  the  absence  of  proof  as  toThich   C 
ment  a  vessel  possessed  there  can  be  no  presumption  that  it  wa    issued 
under  the  latter  rather  than  under  the  former  statute      nLr  the 
presumpfon.  wh.ch  always  favors  what  is  natural,  might  1  an  towarS 
he  possession  of  instructions  under  the  first  act  when  it  appearHha 
the  crew  was  small,  the  armament  light,  and  the  object  of  the  voyaee 
commercial  m  its  nature.  voyage 

The  distinction  must  not  be  forgotten  between  a  legal  and  justifiable 
seizure  and  an  illegal  and  unjustifiable  condemnation     The  sei  ure  o 
a  vessel  may  be  successfully  defended  upon  grounds  which  wi  no 
support  a  subsequent  condemnation,  and  "prize  courts  deny  damage 
when  there  was  probable  cause  for  the  seizure,  and  are  often  juTtfied 
m  awarding  to  the  captors  their  costs  and  expenses."  evn  when  the 
vessel  and  cargo  are  decided  not  good  prize  and  are  returned  tothei 

How.  498 ;  Murray  y.  The  Charming  Betsy,  2  Cr  64  ) 

We  conclude  that  a  vessel  fitted  for  the  purpose  of  seizing  French 

nned  vessels  and  of  recapturing  American  vessels  was.  when  taken 

egitimate  prize  as  an  acto.  in  the  limited  war  defined  brCongres' 

but  that  the  mere  arming  of  a  merchantman  whose  objec    w^s  Se' 

"e  sit":    and      "I  ""  ''"  ^""''°"  '°'  P^°'^'^''-'  '''^  -'-^- 
.«  seizure  and  condemnation  even  if  an  instruction  or  license  under 

either  of  the  acts  of  1798  were  found  on  board.    In  these  cases   a"  in 

'ZVr  ^"""^  ''"'''""  "'"'°"'-  »^^h"f'^3'ifies  must  be  thrown'aside 
and  the  very  essence  and  spirit  of  the  transaction  must  be  disc.ered 
by  the  light  of  the  facts  peculiar  to  each  case. 

It  is  urged  by  the  defendants  that  the  Briti-h  possessions  in  the  West 
Indies  were  ,n  a  state  of  blockade  and  occupied  in  such  manner  a 
properly  to  be  regarded  in  a  state  of  siege.    That,  therefore,  the  con 


l^^•»  ■     -J. 


i:'l 


W 


382 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


demnations  of  vessels  bound  for  those  ports  with  cargoes  otherwise 
innocent  were  legal  and  justifiable.  The  argument  has  turned  myre 
particularly  upon  vessels  bound  for  Martinique,  so  that  for  pv  -pose  of 
illustration  we  will  consider  the  case  of  that  island,  formerly  a  Frencli 
possession  and  captured  by  England  during  the  war. 

The  defendants'  argument  assumes  that  Martinique  was  blockaded; 
that  it  was  practically  in  a  state  of  siege ;  that  its  predominant  cliarac- 
ter  was  that  of  a  port  of  military  naval  equipment ;  and  therefore  the 
seizure  of  neutral  vessels  bound  to  th.it  port  was  justified,  althougli 
the  cargo  was  otherwise  innocent. 

The  law  of  blocKade  is  so  clear  that  while  a  few  citations  may  he 
e;iven  for  the  sake  of  illustration,  they  seem  to  us  hardly  necessary. 

Kent  says: 


The  law  of  blockade  is,  however,  so  harsh  and  severe  in  its 
operation,  that  in  order  to  apply  it,  the  fact  of  the  actual  blockade 
must  be  established  by  clear  and  unequivocal  evidence;  and  the 
neutral  must  have  had  due  previous  notice  of  its  existence;  and 
the  squadron  allotted  for  the  purpose  of  its  execution  must  lie 
competent  to  cut  off  all  communication  with  the  interdicted  place 
or  port;  and  the  neutral  must  have  been  guilty  of  some  act  of 
violation,  either  by  going  in  or  attempting  to  enter,  or  by  cominjj 
out  with  a  cargo  laden  after  the  commencement  of  the  blockade. 
The  failure  of  either  of  the  points  requisite  to  establish  the  exist- 
ence of  a  legal  blockade  amounts  to  an  entire  defeasance  of  the 
measure,  even  though  the  notification  of  the  blockade  has  issued 
from  the  authority  of  the  Government  itself.  A  blockade  must  be 
existing  in  point  of  fact,  and  in  order  to  constitute  that  existence, 
there  must  be  a  power  present  to  enforce  it.  .\11  decrees  ,nrd 
orders  declaring  extensive  coasts  and  whole  countries  in  a  state 
of  blockade,  without  the  presence  of  an  adequate  naval  force  to 
support  it,  are  manifestly  illegal  and  void,  and  have  no  sanctii.m 
in  public  law.  The  ancient  authorities  all  referred  to  a  strict  an ! 
actual  siege  and  bloclcade.  The  language  of  Grotius  is  opplium 
obsessumvcl  partus  clausus.  and  the  investing  power  must  be  'ile 
to  apply  its  force  to  ever\'  point  of  the  blockaded  place,  so  a^  t" 
render  it  dangerous  to  attempt  to  enter,  and  there  is  no  hlockadi  .f 
that  part  where  its  power  can  not  be  brought  to  bear.  CX'ol.  1, 
pp.  144-5.) 

The  United  States  have  contended  that  a  blockade  must  be  effective 
to  be  valid  (note  b.  to  Kent,  vol.  1,  p.  145),  and  admitted  the  principle 
even  as  to  its  own  ports  during  the  late  war.  This  question  has  been 
verv-  ably  discussed  in  a  late  nnte  from  the  Secretarv  of  State.  Mr. 


HOOPER  V.  UNITED  STATES  333 

conclusions:  """>""«•  «"i  ^«'Mary  reaches  the  (ollowing 

may  indeed  be  necessary  as  f  ^n  ""■  P^"^"    ^""'^  ^  ^^-"^^ 

which  proclaims  it   in  Jrdertn  Z^r'  ^"^^=^"^^"1  of  the  state 

then  he  may  se£  and  suhie.,  t.  H    '  P-''^^--^*'"^  ^"-^h  a  blockade, 
vessels  whi^h^maVaUeS;'      ^r  hetiS^r^f  h^T'^^  ^°"^' 

rerion  mieht  betwpen  th<.,«  1  .  j  ,.  ^  aeterminate  cmmtrv  or 
from  their  ports  and  in  t^su?%^'  'i""''''?^'"*'  '^''P^  ^^h-'^tever 
trade  with  s'^^ih  ^^"es  bm  ca  s/much'd-'  '^'".  ''''^'^  '''^'^^'^'  '" 
of  the  world  by  the  exdu  ioSo  Tct'nToZt'i'''' r''""' 
other  market.     (Xote.  dated  Apr     24  Issr  1.    i  Tr'^,?"  ,"° 

Wheaton,  pp.  575    et  seq.)  '       ~^^  •  f'^w^-nce's 

Sir  William  Scott  thus  laid  down  the  rule' 

m.i^I'hf """1'°  ^"'''^''  ''""'■'  '^'  '''"'^'^"^'^^  '""^f  '"^  effective,  notice 
must  have  been  g^ven.  and  there  mnst  be  an  attempt  to  violate  it 


384 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


Was  Martinique  effectively  blockaded? 

Defendants  have  referred  us  to  no  authority  to  show  that  it  was, 
and  we  have  made  such  examination  as  the  sources  of  historical  inves- 
tigation on  this  subject  afforded  without  finding  any  statement  to  that 
effect.  The  records  of  the  numerous  spoliation  cases  in  this  court 
v'hich  have  been  brought  to  our  attention  throw  no  light  on  the  sub- 
ject, as  they  proceed  upon  the  fact  that  the  (.nndemned  vessel  was 
bound  to  an  enemy  port  or  Jaden  with  enemy  produce  and  the  condem- 
nations rest  upon  French  decrees. 

An  examination  of  the  history  of  Anglo-French  naval  operations 
directly  affecting  the  West  Indies  discloses  the  following  events : 

February  2d,  1794,  an  English  expedition  sailed  from  the  Barbadoes 
to  attempt  the  capture  of  Martinique,  then  under  the  command  of 
General  Rochambeau.  This  expedition  consisted  of  three  ships  of  the 
line,  eight  frigates,  four  sloops,  two  store-ships,  and  one  bomb,  under 
command  of  Vice-Admiral  Sir  John  Jervis,  carrying  something  less 
than  6,100  troops,  commanded  by  Lieutenant-General  Sir  Charles  Grey. 
The  French  garrison  was  insignificant  in  number,  consisting  only  of 
some  600  men,  including  400  militia,  while  at  Fort  Royal  was  a  28-gun 
frigate,  and  at  St.  Pierre  an  18-gim  corvette.  Possibly  a  privateer  or 
two  was  also  available.  The  British  arrived  off  the  island  the  5th  ot 
February,  and  some  idea  may  be  gained  of  the  heroic  defense  of  the 
French  from  the  fact  that  with  the  overwhelming  force  at  their  com- 
mand the  British  did  not  obtain  a  surrendei  until  the  22d  of  March. 
The  forts  were  garrisoned,  Lieutenant-General  Prescott  was  given 
command,  a  small  squadron,  under  Commodore  Thompson,  was  left  to 
cooperate  with  him  in  case  of  attack,  and  the  rest  of  the  expedition 
embarked  the  31st  March  to  attack  St.  Lucie  (James'  Naval  flistor)', 
vol.  1,  pp.  217  et  scq.),  which  surrendered  without  the  loss  (if  a  life 
upon  the  4th  of  April.  Then  followed  the  conquest  of  Grande  lerre, 
another  expedition  having  taken  the  three  small  islands  adjacent  to 
Ciuadeloupe,  called  the  "Saintes,"  and  on  the  20th  April  all  (luadc- 
loupe  and  its  dependencies  surrendered,  comprising  the  islands  of 
Marie  Galante,  Desiradc,  and  the  Saintes,  at  an  expense  of  two  British 
rank  and  file  killed,  four  rank  and  file  wounded,  and  five  missing.  A 
French  16-gun  corvette  was  captured  in  this  expedition,  but  was  not 
deemed  fit  for  service. 

Early  in  June  a  French  squadron  of  two  frigates,  one  corvette,  two 
large  ships  armed  en  (lute,  and  five  transports  anchored  off  the  village 


HOOPER  V.  UMTKD  STATES  335 

of  Cosier    Guadeloupe,  and  began   disembarking  troops  commanded 
by  Victor  Hugues,  bearing  the  title  of  commissotrc  ck-il.    After  skir- 
mishes   with    the    British    garrison    and    French    royalists,    in    which 
Hugues  s  troops  were  successful,  a  considerable  f(,rce  of  vessels  and 
men  were  sent  by  the  British  to  dislodge  them.     The  result  was  the 
wthdrawal  of  the-Bntish  from  Grande-Terre  the  3d  Julv,  ju.t  one 
month    after    Hugues's    arrival.      In    October    the    French    received 
remforcements,  took  Basse-Terre,  and  the  6th  October    17<M    were 
agam  masters  of  Guadeloupe,  except  a  small  port  called  Fort  Matilda 
wh.ch.  so  tenacious  was   the  resistance,  they  did  not  capt..re  until 
December   10.     At  the  close  of  the  preceding  year  the   British  had 
Ob  a,ned  posses.s.on  of  Cape  Xicolas  Aide.  Jeremie.  and  other  French 
villages  m  San  Domingo,  and  in  Febn.ary,  1794.  other  places  on  the 
island  fell  mto  the.r  hands  after  trifling  resistance.     In  Mav  a  strong 
force  was  sent  by  the  British  against  Port  au  Prince,  which  surrendered 

llZL  \u"T^"'u^"  ^"^'"^  P°^*  ^'  ^'P'  Tib"ron  was  attacked 
and  captured  by  French  troops,  assisted  by  three  anned  vessels  (ibid  ) 
As  soon  as  news  of  Hugues's  victory  reached  France  there  were  dis- 
patched to  h,s  assistance  a  50-g„n  frigate,  a  36-gun  frigate,  two 
corvet  es,  an  armed  ship  or  two,  and  eight  or  ten  transports  with 
J.UOO  troops  and  suitable  stores. 

H™/'''ir'i  "-^  ^''''   '':"PO'^^"t   reinforcement   inspired   Victor 
Hugues  with  designs  against  the  other  ceded  islands.    Having  not 
only  troops   but  transports  to  convey  and  ships  of  war  to  protec 
them    this  demon  of  republicanism,  whose  barba.itv.  as  fullv  ac 
credited  on  severa    occasions,  was  of  the  most  revo  ting    Icicrip- 
tion    readily  contrived  to  land  soldiers  at  Sainte  Lucie    <^V^'^. 
cent    Grenada    and  Dominique.     Artful  emissaries  accompanied 
the  troops,  and  soon  succeeded  in  raising  a  ferment  in  thei^b,  ds 
which  they  visited.     The  negroes.  Caribs.  and  manv  o    the  "S 
French  inhabitants  revolted:  and  dreadful  were  the  a".rocitics  ner- 
petrated   upon   the   well   afTected.     .     .     .     The   Bri  H    tronns 
thinlv  distributed  from  the  first  and  since  reduced  bv  ^a   g ,    aJd 
sickness,  could  offer  in  general  hut  a  feeble  resistance  to  the  num 
hers   of   different   enemies   opposed   to   them.      The    g.-,rrison™t 

fCnT"-  n7o-T"'^,r'T  ""'"■  '^^••''^•'^*^''  t''e  island  on  the 
lf>th  of  June  m.-,).  By  the  27th  of  fune  the  "rebellion"  in 
Dominique  had  been  quelled  "by  the  few  British  troops  statLed 
there.  .,s,,ed  by  the  bulk  of  the  inhabitants."  St.  Xin'cent  and  a 
part  of  (.renada  remaming  in  a  revolted  state.  (Ibid.  298  et 
seq. ) 


386 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


,rss 
t 


In  April  and  May,  1796,  the  English  took,  without  conflict,  the 
Dutch  settlements  of  Demerara,  Essequibo,  and  Berbice.  On  the  24th 
May,  after  a  stubborn  combat  of  over  a  month,  Sainte  Lucie  was  cap- 
tured by  the  British  troops  and  vessels.  June  11  St.  Vincent  surren- 
dered, as  a  few  days  later  did  Grenada.  So  far  as  appears  the  Frcncli 
had  no  armed  ships  at  either  of  these  islands.  In  the  preceding  .Marcii 
the  British  made  an  unsuccessful  attack  upon  the  town  and  fort  of 
Leogane,  San  Domingo,  and  a  successful  one  upon  the  fort  and  parisli 
of  Bombarde.  No  French  ships  appear  in  these  actions,  but  a  squadron 
arrived  at  Cape  Francois  Alay  12,  but  returned  immediately  to  France. 
(Ibid.  367  ct  seq.) 

February,  1797,  a  British  squadron  left  Port  Royal,  Martinique,  for 
the  purpose  of  attacking  the  Spanish  colonies.  Trinidad  soon  fell  into 
their  hands,  and,  touching  at  Martinique  on  the  way,  the  squadron 
proceeded  to  Porto  Rico,  the  attack  upon  which  was  unsuccessful.  In 
April  the  French  36-gun  frigate  Haniionie  was  destroyed  by  the  K:'-^- 
lish  near  Jean  Babel,  while  sailing  under  orders  to  convoy  to  l  ;ii)^- 
Frangois,  from  Port  au  Prince  and  Jean  Babel,  a  number  of  i)rovi- 
sion-laden  American  vessels  captured  by  French  privateers.  An  action 
between  three  of  the  British  fleet,  a  French  privateer,  and  a  French 
battery  in  Carcasse  Bay,  is  the  only  other  engagement  noted  as  liavini,' 
taken  place  in  the  West  Indies  during  this  year.  {Ibid.,  vol.  II,  pp.  97 
et  seq.) 

The  year  1798  opened  with  the  evacuation  by  the  British  in  .■Xpri!  of 
Port  au  Prince.  St.  Marc,  and  Arcahaye,  all  in  San  Domingo,  shortlv 
after  which  three  French  36-gun  frigates  landed  supplies  at  Cape 
Frangois  and  returned  home.  An  engagement  between  the  British  and 
Spanish  was  the  only  other  important  naval  event  of  this  year  in  the 
Gulf.  In  August,  1799,  the  British  took  the  Dutch  island  of  Surinam, 
finding  in  the  river  a  French  corvette,  the  Hmsar.  which  was  added  t^ 
the  British  navy.  (Ibid.,  p.  373.)  September  13,  1800.  the  island  of 
Curagao  surrendered  to  the  British,  and  forty-four  vessels  were  found 
lying  in  the  harbor,  but  no  warships.     (Ibid.,  vol.  Ill,  p.  59.) 

In  May,  1793.  the  Hyena,  of  24  ginis.  and  La  Concorde,  of  40  S'l"^ 
(the  advance  frigate  of  a  French  squadron  of  some  six  vessels),  harl 
an  engagement  ofT  Cape  Tibnron.  which  resulted  in  the  defeat  of 
the  former.  In  July  the  English  frigate  Bo-ston.  after  capturing  tlie 
first  lieutenant  of  the  French  frigate  Embuscade,  then  King  in  the 
harbor  of  New  York,  challenged  the  Frenchman  to  battle,  a  challenge 


HOOPER  V.  UNITED  STATES  337 

which  was  accepted;  the  battle  took  place  without  decided  result,  and 

Ltt  ^'  ''     '  'r  '^''■"^'  ^"^''''  ^^"^  ^^'^"v-^ds  found  b. 

^  „         T    r^  '".'*''  '"°"**^  °^  '^'  ^^'^^^■^^^'  ^here  she  sought 

e  uge.     In  ^ovember  a  combat  took  place  between  Pe,^lope  and 

ipngema  on  the  one  s.de  and  the  /„.„.,.•„,,  on  the  other,  in  the  bi^t 

of  Leogane.  .sland  of  San  Domingo,  resulting  in  the  defeat  of  Se 

French  fr.gate.     (Ibid.,  vol.  I.  pp.  88  et  scq.) 

■J.L^'tT'^"'.^^^\  '^'  ^-''''^'^   ^"^^'^  ^''"'^''-'  cruising  off  the 

ession    cu?"T     •  '  '^'^"''^"^^  ''  ^"^^^'°"P^-  ^''^  ■"  F-n*^"  Pos- 
session, cut  out  a  government  armed  schooner  of  8  guns,  which    to 

Zwanct  h",  "'  '"  '''  '""^•^  °^  '''  '^y  °^  D^irade.  Ute^ 
the  Blanche  hzd  an  encounter  with  the  French  36-gun  frigate  Piaue 
off  Pomt-a-P,tre,  in  which,  after  a  battle  most  gallf:;t  on  £  h  ^d 
th  P,gue  was  captured.  In  May  there  was  a  battle  in  Chesapeake  Bay 
between  two  Enghsb  frigates  and  five  lightly  armed  Frenchmen,  most 
of  them  store-ships.    (Ibid.  277  et  scq  ) 

Fr?n"chtn  b   "'  ""r'  '"I''''!  ^"""^  '"^'^'''  ^^  -P*"-d  the 
i'rench  gun-b  dean  m  latitude  28°  north,  longitude  69°  west 

In  July.  1/y         combat  without  definite  result  took  pkce  between 

he  frigates  A.r.^ble  (English)  and  Pef^ee  (Fr-  Venning  off 

attacked  the  F,„^^a«c^  within  gun  fire  from  Guadeloupe  >,     .ries  and 

August  25  1796,  the  British  20-gun  ship  Raison  engaged  the  Ven- 
seance  the  Mermaid  s  former  opponent,  in  latitude  41°  19'  north  and 
longitude  66°  24"  west,  without  definite  result.     Later  in  the  s.mo 

Qne  Henrf  ^i'V^r^'r  l'''^""'  ''''  ^'^^"'^'^  '"^^'^  Elizabeth  off 
lor.     T.'        •'  ^T""''"  '^'  ^^f^dee  engaged  the  Pclicr-t  off  Guade- 

time  the  TheHs  (French)  and  either  the  Pctsee  or  the  .     ncorde  were 
^anchor  m  Guadeloupe.    The  Pelican  was  so  much  inferior  to  th 
m^t  to"theT"r  T'-  ""^"  ""^  ^"  aide-de-camp  under  a  flag  of 

n     .    m  .  T       '°  '"'P^'  '^'•'  ^^  '^"^  '^^-  ''■'^'■e  at  anchor. 

tur«l  'll'f'\-^''^''':  1797.  the  38-gt,n  Hriti..h  frigate  Arctlu.sa.  cap- 

J  "I  "  '■"■''^^^"c^'  the  French  corvette  Gaietc.  sighting  at 

ms"    sunr^'":  ''^  brig-corvette  Espoir.  of  14  guns,  and  a  third 

vessel  .supposed  to  be  a  small  French  war  vessel.    Five  days  later  the 


388 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


Alexandrian,  schooner  of  6  guns,  acting  as  tender  to  the  flag-ship  at 
Martinique  and  engaged  in  quest  of  Frencii  privateers,  captured  a 
privateer  schooner  and  chased  another,  which  escaped.  September  17 
the  Pelican  destroyed  the  French  privatcr  Trompeuse  off  Cape  St. 
Nicolas  Mole.  On  the  4th  October  the  Alexandrian  captured  the 
French  privateer  Eficharis.  January  3,  1798,  the  British  armed  sloop 
Georg^e,  of  6  guns,  while  on  a  passage  from  Demerara  to  Martinique, 
was  captured  by  two  Spanish  privateers.  Thirteen  days  later  boats 
from  the  20-gun  ship  Babct,  then  cruising  between  Martinique  and 
Dominique,  captured  the  French  armed  schooner  Desirce.  April  17 
the  British  schooner  Recovery,  cruising  in  the  West  Indies,  fell  in  with 
the  privateer  Revanche  and  compelled  her  to  surrender.  May  7  the 
British  brig  sloop  Victorieuse,  while  passing  to  leeward  of  Guadeloupe, 
was  attacked  without  success  by  two  French  privateers.  The  same 
vessel  during  the  following  December,  aided  by  the  14-gun  brig-sloop 
Zephyr  and  some  troops,  after  an  attack  upon  the  Spanish  '  the 
island  of  Margarita,  took  out  the  privateer  Couleuire,  of  6  gun:  nd 
80  men,  from  the  port  of  Gurupano.  July  11  boats  from  the  B  .tish 
44-gun  ship  Reoulus  cut  out  three  vessels  at  anchor  in  Aquada  Bay, 
Porto  Rico.  December  11  the  British  22-gun  ship  Perdrix  captured  the 
French  privateer  Armcc  d'ltalie  not  far  from  St.  Thomas. 

March  30,  1799,  boats  from  the  British  frigate  Trent  and  cutter 
Sparrow  cut  out  a  Spanish  merchi  nt  ship  and  schooner  which  they 
found  in  a  bay  of  Porto  Rico,  at  the  same  time  storming  and  carryin- 
a  small  Spanish  battery.  April  13,  the  Amaranthe,  a  British  14-gun 
brig-sloop,  captured  the  French  letter-of-marque  schooner  Venscur 
after  the  latter  had  made  a  noble  resistance. 

The  officers  and  crew  of  the  Abergavenny,  stationary  flag-ship  at 
Port  Royal,  tired  of  inaction  during  the  whole  of  1797  and  part  of 
1798,  fitted  out  on  their  own  account  a  frigate  launch  which  was  sd 
successful  in  prize-taking  that  its  proprietors  were  enabled  to  pur- 
chase with  their  prize  money  a  small  schooner  named  the  Ferret, 
which  became  the  tender  of  the  Abergavenny.  The  Ferret  early  in 
October,  1799,  had  a  very  sharp  encounter  with  a  Spanish  privateer 
without  decisive  result.  Later  m  the  same  month  the  British  bris;- 
sloop  Echo  cruising  off  Porto  Rico,  chased  a  French  letter-of-marque 
into  Laguadille  bay  and  cut  her  out,  and  not  long  after  occurred  the 
daring  capture  of  the  Herminne  in  the  harbor  of  Puerto  Cabello.  In 
November  the  Crescent  and  Calypso  adroitly  saved  their  convoy  from 


HOOPER  V.  UNITED  STATES  339 

San  Dommgo.  encountered  a  French  squadron  recently  arrived  at 
Cape  Frango.s  from  France  and  bound  to  Jacmel.  Strang,  to  say 
th,s  32-gun  fngate  captured  all  the  French  v^.sels  without  casualtv 
on  e,ther  s.de.     The  squadron  consisted  of  four  vessels  mounter  8 

about  212  men.    In  December  an  indecisive  conflict  took  place  off  the 

o  Tn  out  Tk'"?p^'"^^"  ''"  '"'"""''''  -^  --^--^'^  in  charg 
of  an  outward  bound  British  West  India  convoy,  an,!  the  5-;>.„.  and 

Bcr,,re  bound  from  Rochelle  to  Cayenne  with  IsO  troop    a  d  Victo 

Hugues  on  board.     (James.  Vol.  II,  pp   79  et  sea  ■  '98  ./l     ^n 

etse,.)     Early  in  April.  1800.  boats'f^L  the  slooVc';    oT V 

sh  38-gun  fngate  Sane,  cruising  in  the  Mona  passage  sighted  the 
ler^eance,  bound  from  Curasao  to  France,  which,  a  tcr  a  sharp 
combat,    surrendered.      In   October   the    schooner    Gy^sie    (Bri  ishT 

vTllf.;:  2rj1:?'  -''-''  '''  ^"••"^---  -«  --   aa^es! 

coX^  '^"fi^h  -very  naval  action  (except  some  few  unimportant 
comba  s  w>th  pr>vateers)  of  which  we  can  find  record,  which  took 
place  from  1793  to  1800,  both  years  inclusive,  between  Bri  sh  and 
French  or  Spamsh  naval  forces,  on  or  near  the  eastern  coast  o    Amer 

me^r^The         '"^  °'  ''T''  ^"'  ''''  "°^^^-  --*  «^  South 
America.     The  reason  for  so  voluminous  a  list,  which,  while  probably 

.t  a  one  can  any  conclusion  be  drawn  as  to  the  amount  of  the  French 
naval  force  and  ,ts  uses  during  the  period  in  dispute.    For  conven  e  ce 

wet:::  ctd  v;t"'  "  '"^.'  "^■^-  '^  ^°  '"^^^^-^^^^  ^'^  ^""2- 

ott  fa,  t  '  n  ?  r  °"^.^"^'^°""*y-  -d  one  which,  while  not  with- 
oLr  ^  J  V  "  '"■'^"^''''  ''  ''''^"">-  ^"^  -conveniently  compiled, 
a  aw  trom  the  citations  already  made. 

Martinique   it  is  alleged   was  effectively   blockaded.      This   is   not 
affirmatively  shown   and  perhaps  we  might  rest  here,  but  in  thiol  s 

throw  all  the  light  in  our  power  upc     the  e.x-act  situation. 
N4^a?"^toS'lS  IPerv;;.:  t''''''  ^"'"  °'   S-^"""^.   ^^■.   Copper's 


390 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


From  the  citations  made  and  also  from  the  history  of  the  Amentan 
Navy  certain  facts  clearly  appear  as  worthy  of  notice. 

First,  the  ver>-  small  number  of  encounters  between  vessels  of  the 
English  navy  and  French  vessels  of  war. 

Second,  that  no  such  encounter  took  place  near  Martinique,  the  two 
captures  of  privateers  by  the  Alcxandruin  being  the  only  combats 
mentioned  as  occurring  in  the  vicinity  of  that  po"t  after  its  occiqia- 
tion   by   the  English. 

Third,  that  not  a  word  is  said,  or  an  allusion  made,  in  any  attain- 
able authority  as  to  a  blockade  or  an  attempted  blockade  (in  fact)  of 
any  West  Indian  English  port.  It  does  not  appear  that  any  amuil 
vessel,  English  or  American,  was  ordered  to,  or  attempted  to,  ijniils 
any  such  blockade,  although  the  English  force  was  at  times  very  laiL;c 
in  the  West  Indies  and  was  actively  engaged.  Neither  in  Cooper's 
iXava!  Ili.story  luir  in  the  IJfe  of  Decatur,  nor  in  any  other  work 
relating  either  to  the  English  or  American  Navy  which  we  have  been 
able  to  consult,  nor  in  the  diplomatic  correspondence  of  the  perioi!. 
do  we  find  any  statement  tending  to  show  that  there  existed  anythint; 
other  than  a  paper  blockade,  a  blockade  useless  and  void  in  so  far 
as  neutral  rights  were  affected. 

Fttrthcr  proof  of  this  absence  of  effective  blockade  is  found  in  the 
large  numlier  of  morchnnt  vessels  which  safely  traded  with  these  ports 
during  the  period  in  (lucstion.  and  in  the  lack  of  contention  on  tlie 
part  I'f  France,  notwithstanding  Mr.  Pickering's  vigorous  languai;e 
(  Doc.  102,  pp.  408,  410),  that  they  were  maintaining  o*-  endcavoriiii; 
to  maintain  an  effective  blockade. 

\\\  have  already  seen  that  the  French  C^overnment  clid  not  desire 
the  fulfillment  of  the  treaty's  guaranty  clause,  deeming  it  wixT  on 
their  own  account  that  we  should  not  embark  in  the  war.  ( ieiiet  and 
the  colonists  complained  of  our  course  on  this  subject,  but  the  iMme 
government  did  not  agree  with  them.  .\s  late  as  Marvh.  17''8.  TalU\- 
rand  wrote  to  I'inckncy  and  his  colleagues  that  "tiie  Repnblir  \\:i- 
hardlv  constituted  when  a  minister  was  sent  to  rhil.Tdelphia.  wlic^e 
first  act  was  to  declare  to  the  United  States  that  \\'.y  would  not  lie 
f)ressc(l  to  execute  the  defensive  clauses  of  the  treatv  of  alliaiici. 
.lithough  llie  circumstance,  in  the  least  equivocal  manner,  exhiliiied 
the  casus  fnrdcris"  (A  Wait's  Am.  State  Paperr,,  p.  07).  We  find  tii> 
claim  h\-  France  tliat  the  treaty  was  al)rogated  by  a  failure  bv  li'e 
I'nited  States  to  fulfill  the  guaranty  clause.     During  and  soon  after 


HOOPER  V.  UNITED  STATES 


391 


1794  the  West  India  Islands  fell  into  the  hands  of  Great  Britain,  yet 
in  1795  (January  3)  a  French  decree  reciting  the  law  of  December, 
1794,  ordering  the  treaties  of  1778  to  be  respected  as  in  force,  declared' 
in  favor  of  the  United  States,  the  principle  of  free  ships,  free  goods, 
except  as  to  ports  actually  blockaded.  As  against  this  position  of  his 
superiors,  Hugues,  in  February,  1797,  issued  his  order  subjecting  to 
capture  and  confiscation  vessels  and  cargoes  destined  to  the  captured 
islands,  giving  as  a  reason  the  failure  of  the  guaranty. 

The  fact,  then,  that  some  of  the  West  India  Islands  had  been  taken 
from  France  does  not  seem  to  complicate  the  legal  question. 

It  is  urged  that  provisions  bound  for  Martinique  were  properly  con- 
demned, on  the  ground,  substantially,  that  as  the  port  was  in  posses- 
sion of  an  enemy  force,  it  must  be  assumed  they  were  intended  to 
feed  that  force,  and  therefore  were  contraband  by  destination.  (Citing 
The  Peterlwf.  5  Wall.  58;  2  Black.  671  and  672.  "The  Pri/e  Cases"- 
Desty  on  Shipping,  §  423;  Tctens,  Droits  Recip.,  p.  114;  Rlatchford's 
Prize  Cases,  p.  464.) 

As  far  back  as  Grotius  the  distinction  was  made  iutween  things 
useful  only  for  war.  the  carriage  of  which  by  neutrals  is  prohihite.l. 
things  which  serve  merely  for  pleasure,  the  carriage  of  which  is  per- 
mitted, and  things  useful  both  in  peace  and  war,  as  money  or  pro- 
visions, which  are  sometimes  lawful  articles  of  neutral  commerce,  and 
sometimes  not,  according  to  the  circumstances  existing  at  the  time 
Thus  provisions  would  be  contraband  if  hound  to  a  besieged  camp  or 
port.  Kent,  who  seems  to  be  the  most  liberal  of  the  writers  towards 
defendants"  position,  thus  lays  down  the  rule: 

The  modern  established  nile  is,  that  provisions  are  not  generally 
contraband,  but  may  become  so  under  circumstance;  arising  out 
of  the  particular  situation  of  the  war,  or  the  condition  of  the 
parties  engaged  in  it.  Among  the  circumstances  which  fetid  to 
preserve  provisions  from  being  liable  tn  he  treated  as  contraband 
one  IS  that  they  arc  the  growth  of  the  country  which  produces 
them.  Another  circumstance  to  which  some  indulgence  is  shown 
by  the  practice  of  nations  is  when  the  articles  are  in  their  native 
and  manufactured  state.  Thus  iron  is  treate<l  with  in<lulgtnce, 
though  anchors  and  other  instruments  fabricated  out  of  it  arc 
(lirectlv  contraband.  Hemp  is  more  favorably  considered  than 
cordage;  and  wheat  is  not  considered  as  so  objectionable  a  com- 
modity, when  going  to  an  enemy's  countrv,  as  anv  of  the  final 
preparations  of  it  for  human  use.  The  most  important  .listinc- 
tion  is.  whether  the  articles  were  intruded  for  the  ordinary  use 


392 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


of  life  or  even  for  mercantile  ships'  use,  or  whether  they  were 
going  with  a  highly  probable  destination  to  military  use.  The 
nature  and  quality  of  the  port  to  which  the  articles  are  going  is 
not  an  irrational  test.  If  the  port  be  a  general  commercial  one, 
it  is  presumed  the  articles  are  going  for  civil  use,  though  occa- 
sionally a  ship  of  war  may  be  constructed  in  that  port.  But  if 
the  great  predominant  character  of  that  port,  like  Brest  in  France, 
or  Portsmouth  in  England,  be  that  of  a  pert  of  military  naval 
equipment  it  will  be  presumed  that  the  articles  were  going  for 
military  use,  although  it  is  possible  that  the  articles  might  have 
been  applied  to  civil  consumption.  As  it  is  impossible  to  ascertain 
positively  the  final  use  of  an  article  ancipitis  tistts,  it  is  not  an  in- 
jurious i-ule  which  deduces  the  finil  use  from  the  immediate  des- 
tination, and  the  presumption  of  a  hostile  use,  founded  on  its  des- 
tination to  a  military  port,  is  ver\'  nuch  inHamed,  if,  at  the  time 
when  the  articles  were  going,  considerable  armament  \va> 
notoriously  preparing,  to  which  a  .supply  of  those  articles  wdiill 
be  eminently  useful.     (  \ol.  I.  p.  139.) 

The  Supreme  Court  has  decided  that  provisions  the  growth  of  ihe 
enemy's  country,  but  the  property  of  a  neutral,  and  carried  in  a  neu- 
tral vessel,  are  good  prize  because  destined  to  supply  the  enemy  s 
forces;  and  the  court  added  that  provisions  are  not  generally  contra- 
band, but  may  become  so  because  of  their  destination  or  the  particular 
situation  of  the  war.  If  intended  for  the  ordinary  use  of  life,  tiiey 
are  innocent ;  if  intended  for  the  enemy's  forces  or  his  ports  of  warlike 
equipment,  then  their  seizure  is  justifiable.  ( The  Commcrccn  1 
Whe.nton.  382.) 

niuntschli  thinks  it  against  '\^ute  sitte"  to  treat  trade  in  provisiniis 
as  contraband  even  if  it  serves  the  hostile  army's  use  {Mod.  I'olt.r- 
recht.  §  807).  HeflFter  (liuropaisclics  n,lkerrecht,  §  160)  holds  that 
belligerents  may  take  measures  against  the  export  by  neutrals  of 
doubtful  articles,  articles  occasionally  contraband,  only  when  a  destina- 
tion for  the  enemy's  Covenmient  and  military  feces  can  he  shown  on 
adequate  grounds.  Ortulan  denies  that  provisions  and  objects  of 
prime  ncccssit\  may  he  considered  contraband,  except  in  .ases  not 
pertinent  to  this  discussion  (\'ol.  II,  ITO).  Hautefeuilic  goes  nuuh 
further  and  admits  as  contraliand  onlv  arms  ,ind  munitions  of  u.ir 
ready  for  immediate  use.  fit  to  be  used  as  such  and  for  no  otiicr  pur- 
pose.    (Drvts  dcs  Salions  Xcutrcs,  II,  410.') 

Kliiher  leans  the  same  way  and  holds  that  presumptions  arc  in  favor 
of  freedom  >,f  trade  i§  288),  and  .Martens  states  that  the  law  in  I'u- 


HOOPER  V.  UNITED  STATES 


393 

rope  prior  to  the  first  armed  neutrality,  1780.  considered  as  contra- 
band only  arfcles  of  direct  use  in  war.  Vattel  sanctions  the  se.zure 
of  prov,s.ons  -in  certain  junctures  when  we  have  hopes  of  red"  "' 
he  enen,y  by  famine"  ,  Liv.  HI,  ch.  7.  sec.  112^.  but  VVwl Te 
hev.,s  he  .ntcnaed  to  carry  the  principle  no  further  than  to  e  case 
of  a  bes,e«ed  cty;  and.  commenting  on  (irotius.  W  heaton  rea  hi  the 

to  a  nrh  H  ''"':  ^•■""'""^  ^'"^  ^^"^"^  °'-  provisions  not  1.:^^ 

to  a  por    besieged  or  blocka.ied.  only  when  made  for  preservation  o 
^efense    under  the  pressure  of  that  imperious  and  une'uivoca    "eJ 
s.ty  which  breaks  down  the  distinctions  of  nronertv  "  -„,I  ii 
sh^ld^.  ^exercised  until  all  other  .o^.^^^is  Ct    1^^ 
then  not  ,f    he  right  owner  is  under  a  like  necessitv.  and  even  then 
res   tution   shall  be  made  as   soon    as    possible.      B;nkershoek    and 

Whet       """  '"  ''''  """     '  '""^^""-  "P-  '''^  '^"  '^-^8 
Wheaton  expresses  no  definite  opinion  for  himself,  but  clearly  leans 

to  the  side  of  freedom  towards  the  neutral  ^ 

In  1793  (May  7),  Mr.  Jefferson  instructed  Mr.  Pinckney  in  relation 

oTthe  neutral    i;!::f;rr:eT:'  '!  ^°  ""^^"'^°^^'  ^"  '"^^'■"•^-- 

This  instruction  '^  '^Z^Z  ^^^Z^  ^^^^T'^^ 

.n  w  ,ch  Mr.  Jefferson,  after  stating  that  in  time  o    waT  neut'al  '^'e 

ree  to  pursue  their  ordinary  avocations  of  agriculture,  mrr 

ud  commerce.  wUh  the  exception  of  not  furnishing  t^  ci  h  r    e  i!' 

eren      miplements  merely  of  war  for  the  annoyance  of  the  o  he       o" 

nytlung  whatever  to  a  place  blockaded  by  its  enemv."  pro^Tds  u 

define  these  -miplements"  as   follows:  proceerts  to 

phJ/rwhlrh"::','?'  '^r''^^^  '"'""''■  •"  "-^  -"'-""  henu-s. 

!■;  e.  „f  ,„e  coii,m,.,„.      \  „,]„„  „lii,-li.  lik  ■  il,,,i  „f      1    '  , 
n   P  S  rr  "1  ","•''  ■■■  ":""•"-"  "'  "'■■""■■"•"-  ™'W      "•     e 


it 


394 


JUDGMENTS  OF  THF.  COURT  OF  CLAIMS 


at  the  mere  will  or  interest  of  another,  to  have  its  peaceable  in- 
dustry suspended  and  its  citizens  reduced  to  idleness  and  want. 
.  .  .  It  is  not  enough  for  a  nation  to  say  we  and  our  friends 
will  buy  your  produce.  We  have  a  right  to  answer  that  it  suits 
us  better  to  sell  to  their  enemies  as  well  as  their  friends.  Our 
ships  do  not  go  to  France  to  return  empty.  They  go  to  exchange 
the  surplus  of  one  product  which  we  can  spare  for  surpluses  of 
other  kinds  which  they  can  spare  and  we  want;  which  they  ■  :ui 
furnish  on  better  terms  and  more  to  our  mind  than  Great  Britain 
or  her  friends.  We  have  a  right  to  judge  for  ourselves  what 
market  best  suits  us,  and  they  have  none  to  forbid  us  the  enjoy- 
ment of  the  necessaries  and  comforts  which  we  may  obtain  from 
any  other  independent  country. 

Mr.  Randolph,  denying  that  food  can  be  universally  ranked  "among 
military  engines,"  admitted  that  corn,  meal,  and  flour  are  so  in  case  of 
"blockade,  siege,  or  investment."  In  the  late  Franco-Chinese  war 
France  endeavored  ;  nake  "rice"  contraband,  and,  referring  to  this 
contention,  Mr.  Kassnn,  our  minister  in  Berlin,  wrote  as  follows  tu 
the  Secretary  of  State: 


.  .  .  But  more  especially  I  beg  your  attention  to  the  im- 
portance of  the  principle  involved  in  this  declaration,  as  it  con- 
cerns our  .American  interests.  We  are  neutrals  in  European  war-;. 
Food  constitutes  an  immense  portion  of  our  exports.  Every  Eu- 
ropean war  produces  an  increased  demand  for  those  supplies  from 
neutral  countries.  The  French  doctrine  declares  them  contr.i- 
hand,  not  only  when  destined  directly  for  military  consumption. 
!mt  when  going  in  the  ordinary  course  of  trade  as  food  for  tlv 
civil  population  of  the  belligerent  government.  If  food  can  b' 
thus  excluded  and  captured,  still  more  can  clothing,  the  instni- 
ments  of  industry,  and  all  less  vital  .supplies  be  cut  off  on  tlic 
groimd  that  they  tend  to  support  the  efforts  of  the  hcll^gerent 
nation.  Indeed,  the  real  principle  involved  goes  to  this  extent, 
that  everything  the  want  of  which  will  increase  the  distrc'-s  r)f  tl" 
civil  population  of  the  belligerent  country  mav  he  declared  con- 
trab.nnd  of  war.  The  entire  trade  of  neutrals  with  iK'lligcrcnts 
may  thus  be  destroyed,  irrespective  of  an  effective  block.Tde  of 
ports.  War  itself  would  become  more  fatal  to  neutral  States  than 
to  belligerent  interests. 

The  rule  of  feudal  time=,  the  starvation  of  belc.nguered  and  for- 
tified towns,  might  be  extended  to  an  entire  population  of  an  np<'n 
coimtry.  It  is  a  return  to  barbaric  habits  of  war.  It  mitrhl 
enii.ilK  be  claimed  that  all  peaceful  men  of  arms-henrinsr  ace 
cotilrj  he  deported,  brcpnso  iiiher\vi<^e  they  might  be  added  to  'he 
military  force«  of  the  coun'rv. 


HOOPER  V.  UNITED  STATES  395 

Martinique  was  neither  blockaded  nor  besieged.    It  undoubtedly  had 

R  V?  ^'T"°"  '"''  "''  "  ^^^"^^  ^"'^  -■"^ti'"-«  -  rendezvous  for 
Bn  .sh  armed  vessels ;  at  the  same  tin.e  it  had  a  large  civil  populat  on 

one  t:V'  "  T'  '"^^'-^  '^  '""^  P^°^-^^  "f  the  temperate 
zone^  Its  predommant  character  was  not  that  of  a  port  of  naval  or 
military  equipment. 

We  do  not  consider  that  a  provision-laden  ship  bound   for  Mar- 
nmque  was  properly  condemned  on  the  ground  alone  that  she  was 
bound  to  a  Bntisn  port,  nor  do  we  consider  the  fact  that  the  port    ad 
once  been  French  complicate,  the  situation.     There  is  nothin^in  the 
law  of  nations  which  justifie,  or  makes  valid  as  against  neutrals  siH 
decrees  as  these  issued  during  this  war  by  the  /rench  and  E.  g    h 
Russia  admitted  these  decrees  were  c.  ntrary  to  the  law  of  „  dons 
France  promised  to  pay  for  captures  made  under  them.     JCngland  and 
Spam  did  pay  the   United   States,      r  See  authorities  cited   in  2" 

r"'   u     ^u^'   ^^    ^-    "■''■   ''''■'       '^    -ther    partv    desired    n^ 

lective  bt  V  ,  T."  "•■":"'=  *'"'  '^-  "^-^  ''''  establishment  of  an 
effective  blockade.  That  neither  was  able  to  take  this  course  is  not  a 
reason  that  the  commerce  of  neutrals  should  be  suspended  on  the 
penalty  of  having  their  merchant  vessels  and  cargoes  confiscated.  To 
admit  such  a  doctrine  would  be  to  impose  in  time  of  ^var  a  worse  bur- 
den upon  the  neutral  than  that  l..rne  by  either  belligerent,  and  would 
shut  It  up  in  Its  own  ports,  or  oblige  it  to  furnish,  in  protection  of  its 
commerce,  a  naval  force  competent  to  compete  with  the  belligerent 
winch  by  paper  decrees  unsupported  by  effective  acts,  by  its  municipal 
law  attempts  to  interfere  with  the  recognized  and  natural  rights  of 
neutral  trade.  '^ 

We  do  not  un.lerstand  that  in  the  negotiations  of  1800  the  French 
demed  the  justice  of  claims  similar  in  principle  to  the  one  now  su-^- 
pcste.1.  and  the  treaty  of  1778  in  terms  conceded  the  right  to  trade  wirh 
the  enemy  The  commerce  of  the  United  States  was  principally  in 
agricultural  products,  certainly  not  in  munitions  of  war.  A  most  im- 
portant complaint  was  as  to  that  part  of  the  belligerent  decrees  which 
directed  seizure  of  neutral  property  on  the  sole  ground  of  destination 
to  an  enemy  port  without  regard  to  the  character  of  the  cargo  (See 
ireaty  Commerce  1778.  .Articles  XII.  XIII,  XXIII    XXIV  ) 

It  seems  to  us  dear  that  this  class  of  d.mns  was  contemplated  by 
the  treaty  of  1800  ,■„,.!  the  act  of  I8S.r  ^ 


J 


396 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


The  burden  of  proof  in  prize  proceedings  is  on  the  seized  vessel. 
The  authorities  concur  in  this  general  statement,  but  the  principle  is 
not  technical  and  is  not  to  be  pushed  beyond  its  proper  natural  intent. 
Seized  vessels  always  appear  before  the  court  under  the  taint  of  sus- 
picion ;  that  taint  it  is  incumbent  upon  them  to  remove,  as  it  is  in  their 
power  alone  to  do  so.  What  the  court  looks  for  is  the  fact.  If  it 
appear  that  the  vessel  was  innocently  pursuing  an  honest  and  legal 
voyage,  whether  that  appear  by  papers  or  otherwise,  then  the  vessel 
should  be  released.  No  particular  papers,  no  specified  character  of 
evidence  is  marke  out  and  defined  as  indispensable  to  attain  this  end 
A  case  is  v;asily  upposable  in  which  a  merchant  vessel  has  lost  its 
papers  by  an  accident,  or  by  theft,  or  by  robbery  committed  by  a 
pirate  or  privateer,  or  through  suppression  by  the  captor,  and  it  would 
not  be  admitted — the  fact  of  their  non-production  being  explained, 
and  'he  vessel's  honest  character  being  shown — that  because  some  par- 
ticular document  was  not  on  board  she  therefore  should  be  condemned 
and  confiscated.  The  onus  probandi  is  on  the  captured  vessel ;  which 
means  no  more  than  that  she  must  explain  away  suspicious  circum- 
stances. 

The  learned  counsel  for  the  defen.se  cjntend  that  the  United  States 
first  violated  the  treaties  of  1778  by  the  proclamation  of  neutrality  of 
1793,  by  refusing  to  guarantee  the  French  possessions,  by  refusing  to 
grant  the  promised  harbor  privileges,  and  by  concluding  the  Jay  treaty. 
Therefore  "it  was  the  right  of  France  to  retaliate  upon  the  I'nited 
States  for  these  violations :  and  whatever  she  did,  or  whatever  wa  • 
done  by  her  authority  in  such  retaliation  prior  to  and  during  t''e  lim- 
ited war  existing  between  thi:  two  countries,  whether  by  captures,  seiz- 
ures, condemnations,  or  confiscations  of  American  property,  vessels 
or  cargoes,  was  justifiably  done." 

In  another  form  substantially  the  same  contention  is  made,  defen- 
dants claiming  that  the  acts  of  France  complained  of  by  the  I'nited 
States  were  authorized  by  the  law  of  nations;  that  whether  reparation 
was  to  be  made  by  France  depended  upon  compliance  with  her  de- 
mands; that  as  the  United  States  did  not  acquiesce  in  those  demands, 
but  by  the  annulling  act  of  July.  1798.  practically  notified  France  tliat 
they  wonid  not  do  sc,  "from  that  moment  France  owed  no  compensa- 
tion for  those  confiscations  and  the  matter  was  res  judicata." 

In  considering  these  proposition-;  it  will  strike  any  one  who  has 
studied  the  correspondence  or  will  refer  to  the  extracts  made  fmm 


HOOPER  V.  UNITED  STATES  397 

decrees  at  the  outset  were  admitted  hv  lu  ''""''"''''''^  "'''''  ''^^ 
excusable  only  on  the  grrundtrneces  it"  tC^h!:  ^ '"T'-  ^"' 
was  not  by  any  means  consistently  adi  reJ 'to  s,^,,  En.I  I  ^^f"" 
came  back  to  it  in  effect  when  Ly  compl  ^t^e'^  f  ^^  ,«■    ' ^^ 

purchase.         ^'  ''  ^P""  '"  ^'"  *^^''^'^^  ^^>^^i-  to  the  Florida 

^Jtz  „:;  :^ih™o^:t";:.r^--  r  ^-^^^-^^  -^  ^^p- 

such  a  demand  on  her  part     n,h  ""^      '""  "'''  ^^"'  ^'"^'^ 

her  colonists  may  iave'  c^'.r  d  h     tS  ">?  ""'  1  '''  ^^^"'^  ^"^ 
the  Jay  treaty     \VehLTf'      v  ''^    '  P°'"*  °^  difference  was 

that  .-t' was  Tn  confl     ".l  1'      """'  ''"'  ""^^""^"^  ^"^'  "^^^'^^ 
treaties  of  1778     France  del  n  t    "TTu     '"  '"^^  F^^nco-American 

the  treaties  of  1778    on    he  L",  ^  h:        T'  ^''  ^""^  ^^^°^^^^^ 
ratification  of  the  treatrof  Tsm  ^         k      J' ''^""'"'- '^°^^"  ^°  the 

these  treaties  were  o^Z^l.^J'^^^,:^;;^^  ^T'.  '"■^' 
se-zure  of  neutral  property  b'ound  in  Unked  s"t  s  t.S"  o"^'"'' 
ports,  set  forth  as  a  reason  for  its  enactment  tL   t  e  Jay  t    v  mo7 
ficd,  not  annulled,  the  treaties   with   France    and   tint  %     ^ 
ent.t.ed  under  the  treaties  to  any  benefit  :h;:'niX^:h;  ^ 

the^TcTy  onsS)t7li:hT7  fV  ^'"  "'''''"'''''''  ^^"■^■"  '-■  ^o 


398 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


peace,  but  they  are  in  their  nature  acts  of  warfare.  They  depart  from 
the  field  of  negotiation  into  that  of  force,  and,  as  is  war,  are  justified 
by  a  successful  result.  To  term  the  decrees  of  France  and  the  acts 
of  their  privateers  under  them  "acts  of  reprisal"  does  not  alter  the 
facts  or  the  legal  position.  That  position  has  been  defined  by  tlic 
Supreme  Court  of  the  United  States  as  limited  partial  war.  We,  fol- 
lowing the  path  indicated  by  that  tribunal,  have  defined  it  as  "limited 
war  in  its  nature  similar  to  a  prolonged  series  of  reprisals."  The  result 
of  that  partial  limited  war,  the  result  of  the  negotiations  for  settle- 
ment, the  agreement  reached  by  the  two  parties  which  made  the 
Government  of  the  United  States  liable  over  to  its  citizens,  we  have 
heretofore  considered  so  much  in  detail  that  we  shall  not  now  repeat  it, 
and  we  need  only  state  briefly  the  result  heretofore  reached  by  us.  and 
in  which  we,  after  reexamination,  are  confirmed,  that  the  acts  of 
France,  now  in  question,  whether  called  "'reprisals"  or  acts  of  limited 
warfare,  were  contended  by  the  United  States  to  be  illegal,  were  ad- 
mitted so  to  be  by  France :  that  France  stood  ready  to  make  the  com- 
pensation made  by  En,t;land  and  Spain  for  similar  acts  on  their  part. 
provided  we  would  admit  certain  claims  of  her  own,  which  we  declined 
to  do;  and  finally,  by  the  substitution  of  the  existing  second  article 
of  the  treaty  for  that  agreed  upon  by  the  negotiators,  these  claims  were 
surrendered  in  consideration  of  a  release  from  the  French  demand. 

The  case  of  the  Tico  Brothers  presents  a  claim  for  salvage  paid  an 
American  man-of-war  for  rescue  from  a  French  privateer. 

The  broad  principle  of  prize  law  forbids  an  allowance  by  way  of 
salvage  to  the  captor  of  a  neutral  in  possession  of  a  belligerent.  Tlie 
reason  of  the  rule  is  plain :  salvage  is  remtme.ation  for  aid  in  case 
of  danger,  and  a  neutral  vessel  in  the  hands  of  a  civilized  belligetent 
is  not  in  danger,  for  it  is  to  be  presumed  that,  if  innocent,  she  will  he 
discharged  by  the  prize-court  with  damages  for  detention.  Some  of 
the  prize-courts  in  France  were  at  certain  times  during  the  .listiirhcd 
period  between  1792  and  1801  very  fair  and  just  in  their  treatment  of 
neutral  property.  We  have  in  our  opinions  on  the  spoliations  cited 
instances  of  a  reasonable  judicial  application  of  the  law.  Unfor- 
tunately, however,  the  fair  administration  of  justice,  which  before  the 
Revolution  and  s  ice  has  characterized  the  learned  and  able  otlicial:* 
who  have  there  f..icd  the  offices  of  the  magistrature,  was  interrupted 
(luring  the  period  now  under  consideration.  Setting  aside  the  charges 
made  of  ulterior  and  improper  motives  on  the  part  of  individual  magis- 


HOOPER  V.  UNITED  STATES 


399 

of  the  French  or  olonL,  Co^'  "'"'  '''"^  °"'>  '°  ^-^"  that  the  decree, 
tribunals,  and  thos^Xr  "Si^rto''"?^  "7  ^^^  P^'^ 
of  the  decrees  were  in  conflict    v.^h  'heT.        T  ''"'"•     '''^">' 

invasion  of  the  rights  of  neut  as      iV       t  "'"°"'  ""^^  "^^'^  ^" 

authorities  placed  neu tral  orl  e/r  ^°""°"  "''""^'^  "^^  ''^^  ^^^"-^I' 
dangerous  I^sition  I  taken T:  Fr^  T""'  ^""^-^^^^  '"  ^  --' 
expect  a  trial  under  the  recogied^r^V'''"'"''  ^'"^  "^^^  "°'  '° 
arbitrary  and  illegal  ^unS  r:^^,;^;:;-:;^!-  ^  -^  under 
sanly  result  in  condemnation,  even  if  tl  e  loca  It  ,"°"'^  "*^"'- 

suspicion  of  improper  prejudice.  "^'  "'^^'^  ^^^'^ 

Under  these  circumstances  tho  rpasor,  f, -I    ^ 
in  case  of  .capture  of  a  n::;::,^^  ^  II  gert^'Tt."  ''''''' 
was  ,n  danger  of  condemnation,  .o  the  recantunW  ^  "'"''"' 

to  salvage.  We  have  alreadv  c  teH  Z  '^'^P'"""^  ^^^^el  was  entitled 
at  the  time  of  the  occur  ence^  Tot  hlTT"  °  '''''  ^'°"-^"-  -""■ 
just  and  necessary  to  adopt  this  nde  "  ^'""^  ^'■°"-  ^«"""  ■' 

.^^^'a  S::?:^^.:!;^:^;^^  ^-^  '-ve  deCred  that  to  sup- 
mnst  be  lawful,  and  h^'e  mus  he"'"  ""  ""^^  -ncur-the  taking 
fe  recaptured.'  Coml^^in;  .  ^Vrslre;-  '''''''  ^^""^^^^  ^° 
neccity  for  meritorious  servL,  the  court  sa"        °""""  ''  ^°  ^'^^ 

it  ^"^i^ut'^i^sS^r '^^-f-^a^  is  not  payable ;  and 
captured  neutrals  from  its  navmen      1'  .  ,"''  '''^"'^'  ^'-^^"^Pt^  •■^'- 
'aws  and  its  practice  on    his\  b?ect     le     f  1  ""'  °"  '^''"^'  ''. 
as  to  subject  to  condemnation  ,1     '!"  ,       '''  legislation  be  such 
and  who  .ill  sav    hat  no  Sefi     s'cont  'Tr'  "">  '^^  ^""■-'' 
■"'.ch  a  course  of  things  th^^ta  e  of  th""'"'  ^^'  ^  '■'•■'Capture.     In 
changed.     So  far  from  beine  t  e  t        •  "'""■''  '^  completely 
condemnationasif  capTured  bvhi  ';,J„%r.  j"  "^  '""'^''  ^■■*"S"  of 
of  decisions,  then,  and  of  rules  fonnil^         '•"'^^  '""'">"■    "^  ^^ries 
longer  apply.     Qnlv    l^osc     del  nr^      "r  '^',V"Pf^°'"''  "^^^tv,  „o 
situation  of  actual  danl^r     Thl        ^PP'-^-ahle  which  regulate  a 
change  of  principle.  iTapresevati ^nf  "  ^''',  ''^'^"  ''^^'<^'  ^ 
application  of  it  ac^ordiife  to  the  n      •     ,  ^''r 'P''"  '^>'  ^  Practical 
of  the  rule.  '^'^o^'nP  to  the  ongmal  substantial  good  sense 


1 1 


I- 


400 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


prize  crew  so  probable  as  to  create  a  case  of  such  real  danger  that  her 
recapture  must  be  considered  as  a  meritorious  service  authorizing 
allowance  as  salvage.  On  this  point  the  conclusion  is  reached  that  the 
danger  of  loss  was  real  and  imminent. 

The  captured  vessel  was  of  such  description  that  the  law  by 
which  she  was  to  be  tried  condemned  her  as  good  prize  to  the 
captor.  Her  danger  then  was  real  and  imminent.  The  siTviic 
rendered  her  was  an  essential  service,  and  the  court  is  therefore  ui 
opinion  that  the  recaptor  is  entitled  to  salvage.  {Talbot  v.  Sec- 
man,  case  of  the  Amelia,  1  Cr.  1.) 

We  see  no  reason  why  a  rule  laid  down  by  such  eminent  authority. 
so  just  in  principle,  and  the  result  of  such  sound  judicial  reasoning:, 
should  not  be  applied  to  the  cases  now  before  us. 

The  I\'ancv  was  under  charter  to  sail  from  Baltimore  to  Jamaica, 
there  to  discharge  cargo,  reload,  and  return  to  Baltimore.  W'liiK-  on 
her  way  to  Jamaica  under  this  charter-party  she  was  seized  on  the  hit!li 
seas  by  a  French  privateer  and  lost  to  her  owners.  The  question  is 
now  presented  as  to  the  basis  upon  which  an  allowance  for  freii;lit 
should  be  computed. 

It  is  evident  that  freight  earned  is  an  element  of  value  in  the  prop- 
erty lost.  The  ship-owner  has  a  right  to  expect  a  reasonable  return 
upon  his  venture,  and  this  rit  irn  he  finds  only  in  the  freight  money. 
.\s  between  the  vessel  and  t.  >  cargo-owner  the  freight  is  regarded 
as  an  entirety  due  in  no  part  until  the  arrival  of  the  vessel  at  the  port 
of  destination.  Between  these  two  alone  does  this  rule  prevail — as  to 
them  the  law  has  placed  a  certain  construction  upon  the  contract  of 
afifreighmient  to  which  they  are  parties— a  construction  well  utnler- 
stood.  admitted,  and  certain.  As  to  third  parties  no  such  rule  pre- 
vails, and  as  against  them  freight  is  often  recoverable,  even  when  tlie 
vessel  does  not  reach  her  destination.  In  cases  of  tort,  such  as  ctilli- 
sion,  Dr.  Lushington  says:  "The  party  who  had  suffered  the  injurv 
is  clearly  entitled  to  an  adequate  compensation  for  any  loss  he  nuiy 
sustain  for  the  detention  of  the  vessel  during  the  i)eriod  which  ;- 
necessary  for  the  completion  of  the  repairs,  and  furnishing  the  now 
articles  (2  W.  Robinson.  279).  and  he  allowed  gross  freight,  less  the 
ordinary  ship's  expenses  necessary  to  earn  it.  As  a  broad  rule  this 
is  well  enough,  but  it  is  not  without  possible  exception,  for  we  may 
imagine  an  injury  at  a  time  when  the  vessel  is  not  engaged  in  freiijlit 


HOOPER  V.  UNITED  STATES  40I 

earning,  although  even  then  we  probably  look  to  the  market  for  a 
proper  measure  of  damages. 

court  allowed  damages  for  dem\!rra":::t.n^;,V:  ^f ^^^^^^^^ 
less  expenses    as  a  proper  measure,  three  justices  dissenting  oT  the 

fhTTase  aid  t^nTrf'"'^  '""'"^^^  ^^°  ^^^  "nceSty  i  o 
the  case  and  tended  to  mcrease  the  "stringency,  tediousness  and 
charges  of  l.t.gat.on  in  collision  cases."  They  tI,erefore  pre  r'red  a 
rule  grantmg  full  damages  at  the  time  and  place  of  collision' with  le^al 
intere.st  on  the  amount  thus  ascertained  " 

IsS'rS  Waif  Srw^''""'  '"""^  '''""  '^°"'^-"-  --  d-'ded  in 
iSln  .  ^'-^^^  '°"''  '^^'^'"^'  ''^^'  the  suffering  partv  is  not 

hm  ted  to  compensat.on  for  the  immediate  effects  of  the  inju  y  in 
fl.cted.  but  the  cla.m  for  compensation  may  e.xtend  to  loss  oTZZ 

Z2:ST  '""'""'  "  "^''"^  ''^''''''  -'^  unavoidable  d  fen.' 
t.on.  Rcst.tut,o  tn  mtcsmm  is  the  leading  ma.xim  in  such  cases  say 
the  court  and  m  respect  to  materials  for  repairs  where  repaS  are 
pracfcable  there  shall  not.  as  in  insurance  cases,  be  any  deduSon  ior 
new  matenals  m  place  of  old,  for  this  reason    hat  "the  cla^  of  the 

Zm  th'^H'    """  '^  ""°"  °'  *^^  ^-"^^"1  -»  of  th     partv     y 

noT  litedT'  "''  '""""^''  ^"'  ^''^  '"--'■^  of  the  indemnity 
B  not    ,m,ted  by  any  contract   but  is  coe.xtensive  with  the  amount  of 
Odmage.     .     .     .     Allowance    for    freiirht    is    marl^    ,„         u 
reckoning  the  gross  freight  less  the  ch^U.S would'' nec^sa";: 
l>ave  been  incurred  in  earning  the  same,  and  which  wer    sa'ed  t       'e 

:tro?L    "^  r  M  "'  "'^'''''''  ^'■^'^  '"'^-^^  -  the  sam     from 
rtate  of  the  probable  termmation  of  the  voyage  " 

In  case  of  capture  the  general  n.Ie  is  'that  the  netitral  carrier  of 
enemy  s  property  is  entitled  to  his  freight  ( Storv  f    in  TlTr 
1  r.a„ison    264).     Sir  William  Scott^e.d'e:^:^^,;      t.  "'X:' 
the  case  oi  Dcr  Mohr  (3  C.  Rob.  129.  and  4  C.  Rob   31 S)    a  case  0 

tCcJ:::teTaidr"^"'"^  ■^^^°"^'>-  *°  ^^^  -^-p- >■  ^^^  ^^  t 

not  add  that  no  rehef  ,s  possible  which  can  not  be  given  consist- 


402 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


ently  with  the  justice  due  to  the  claimant.  The  demand  of  freight 
is,  I  apprehend,  an  ahsolute  demand,  in  cases  where  the  ship  is 
pronounced  to  be  innocently  employed.  .  .  .  The  freight  is 
as  much  a  part  of  the  loss  as  the  ship,  for  he  (the  captor)  was 
Ijound  to  answer  equally  for  both.  The  captor  has,  by  taking  pos- 
session of  the  whole  cargo,  deprived  the  claimant  of  the  fund  to 
which  his  security  was  fixed.  He  was  bound  to  bring  in  that 
cargo  subject  to  the  demand  for  freight.  He  was  just  as  answcr- 
ab'  for  the  freight  of  tlie  voyage  as  for  the  ship  which  was  to 
•  it,  or  which  was  rather  to  be  considered  as  having  alrcadv 
earned  it.  In  the  room  of  this  fund  the  captor  has  substituted  his 
own  personal  responsibility,  for  loss  accrues  by  the  fault  of  his 
agent.  I  see  no  distinction  under  which  I  can  pronounce  that 
the  claimant  is  not  as  much  entitled  to  the  freight  as  to  the  ves- 
sel.    (.See  also  1  Gallison,  274,  the  Anna  Green.) 

Upon  an  open  insurance  policy  gross  freight  is  recoverable  (2  Phil- 
lips, Ins.,  §  1238).  As  to  insurance,  the  inchoate  right  to  freight  vest^ 
directly  "the  .ship  has  broken  ground  on  the  voyage  described  in  the 
charter-party,"  and  there  is  an  insurable  interest  "where  there  is  an 
expectancy  coupled  with  a  present  existing  title"  (Lucena  v.  Cra:,'- 
ford.  2  Bos.  and  Pull.  N.  R.  269;  1  Phillips,  Ins..  §  334,  p.  192.) 

Freight,  then,  is  property  insurable  and  collectible.  It  has  value 
although  the  right  as  against  the  freighter  may  be  inchoate  until 
delivery.  As  to  the  freighter  the  ship-owner  is  without  redress,  unless 
iher^  I.  •  delivery  ii;  accordance  with  the  contract,  but  as  to  an  insurer 
or  a  tort-feasor,  there  is  a  right  to  redress  upon  the  happening  of  i" 
interruption  of  the  voyage.  The  amount  of  that  redress  and  the 
method  of  computing  it  in  the  cases  now  submitted  to  us  of  illet;;i! 
capture  are  now  to  be  decided.  The  ship-owner  has  a  risjht  to  .t 
reasonable  return  upon  his  investment,  for  the  risk  to  which  his  prop- 
erty is  subjected,  for  its  depreciation  while  engaged  in  the  luulertakini;, 
and  for  the  expenses  to  which  he  is  subjected  in  carryinjj  it  o;;t.  The 
measure  of  that  return,  based  upon  the  theory  of  a  completed  voyaLrc 
he  has  himself  fixed  in  his  contract  of  affreightment.  If  liis  voya.;e 
be  not  completed,  but  be  interrupted  and  his  projicrt',  lost  by  the  act 
of  a  wrong-doer,  then,  as  against  that  wrong-doer,  the  ma.cim  resti- 
tutio in  integrum  applies.  If  the  voyage  were  completed  the  difficulty 
would  not  be  serious,  for  as  a  guide  we  should  have  a  contract  made 
by  parties  opposed  in  interest  and  familiar  with  the  business.  .\s  the 
voyage  has  not  been  completed,  an  allowance  of  gross  freight  would 
be  more  than  i  restitutio  in  integrum,  and  would  neglect  a  deduction 


HOOPER  V.  UNITED  STATES  4Q3 

for  expenses  necessarily  to  be  incurred  in  completing  the  contract  and 

conttmplat^d.  her  crew  have  received  less  wages,  a.id  I,er  hull  and  out 
fit  have  received  less  deterioration     She  has  onlv  LZ   ,7 

fre.Rht  by  the  number  of  days  out  of  port  would  not  be  fa     to    h 
sh.p-owner;  to  deduct  from  the  total  freight  the  coJ  nf  , 
from  the  place  of  destn.ct.on  to  port  of  dSh ,a^i:„To.       ^ aTi^ 
rule,  could  those  expenses  be  ascertair.e.l 

To  compute  the  amount  of  this  frci,,du  in  each  instance  is  practically- 
^possible  so  that  the  court  is  forced  to  the  adoption  o  some  /en 
eral  ru  e  wh.ch  m  cu.  opinion  is  fair  in  result.  The  difficZi/" 
a  novel  one  and  the  method  of  solution  not  without  precS  n  '  Th  "e 
fam,har  w.th  the  proceedings  of  prize  courts  know  that  a  substant  ^  v 
arbitrary  rule  is  there  often  adopted  in  practice  to  enforceTui  ce  aid 
now,  nearly  a  hundred  years  after  the  events  from  which  the-  cl'ams 

SdtThi    ^"""""^  ^"  '"'  ^"'  '"^"^  ^^-^^^  destroyed   we  a 
forced  to  this  course,  as  .t  .s  evidently  impossible  to  estimate   n  everv 
.ns  ance  precisely  the  proportion  of  freipin  earned      \^Te  1,    In 
es^mate  can  be  made  .e  .ha„  make  it,  in  other  cases ^Xh"!;; 

In  seeking  for  such  a  rule,  we  learn  that  in  commercial  cities    in 

he  adjustment  of  average  losses,  there  is  a  practice  to  award  arb     ariK 

two-th,rds  of  the  full  freight  on  the  immediate  vova^e      Th  s     '"  e 

S  Frl'r;  'T'^''  '''  -------  -n^er  th;  treJt'  of  13 

with  Trance,  who  made  a  similar  allowance  as  a  fair  measure  of  the 
jncrease  ,n  value  of  the  cargo  by  reason  of  the  distance  to  which  i  had 
l^en  transported  at  the  time  of  capture:  and  the  award  was  made  to 

rule  t'sS;^;!';""  '"  V*^  ^^^^^  '^^"^^  "^  ^^-^  '^"-■"-^^  ^hat  this 
ruie  is  substantially  just    and  we  adopt  it. 


it 


Jfl 


404 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


This  brings  us  to  another  point.    The  Nancy  was  under  charter  for 
a   round   voyage — Baltimore  to  Jamaica  and   return.     She   v.  ^   de- 
stroyed on  the  outward  voyage.    Is  she  entitled  to  an  a''  .van^c  !-> 
freight  based  upon  the  entire  contract  contained  in  the  ci  uter-part\  ■ 

As  against  an  insurer  or  tort-feasor  the  inchoate  rigl  <  f  frt'itrlu 
vests  when  the  vessel  breaks  ground  "on  the  voyage  desc^;' >.  1  .h  t'k- 
charter-party"  (supra).  An  insurable  interest  in  freight  can  not  spi  ;:'.„- 
from  a  mere  "expectancy,"  but  may  spring  from  an  "expectancy"  whtn 
this  is  coupled  with  "a  present  existing  title."  (Luccna  v.  Crawford, 
supra. ) 

I.i  cases  of  general  average  for  jettison,  Lowndes  states  the  rule  to 
be  that  "when  a  ship  is  chartered  to  fetch  or  carry  a  cargo  belongitii; 
to  the  charterer,  the  freight  under  the  charter  must  contribute  to  the 
general  average,  whether  or  not  the  cargo  is  on  board  the  ship  at  tlie 
time  of  the  general  average  act,  since  ihe  loss  of  the  chartered  shij>. 
whether  laden  or  not,  would  deprive  the  ship-owner  of  his  expects. 1 
freight."    (Lowndes  on  General  .Average.  236.) 

It  has  been  held  in  this  country  that  where  a  gross  sum  was  to  W 
paid  as  freight  for  a  voyage  out  and  return,  the  principal  object  ^^i  tln' 
voyage  being  to  obtain  a  return  cargo,  the  freight  for  the  whole  tri|) 
must  contribute  to  general  average  on  the  outward  voyage.  ( 7/  ,• 
Mary,  1  Sprague's  Decisions,  17.)  The  same  rule  has  heon  adopted  i.i 
cases  of  salvage.  (The  Xathaninl  Hooper,  3  Sumner,  542;  The  P'r- 
firess,  Edwards.  21^:  The  Dorothy  Foster.  6  C.  Rob.  88:  see  also  /iV- 
iti'^ston  v.  Columbia  Insurance  Company.  3  Johns,  N'.  Y.  40;  /fart  v. 
Dehr^ire  Insurance  Company,  2  Wash.  C.  C.  346.) 

The  decisions  on  this  question  in  the  United  States  do  not  go  so  far 
as  those  in  England,  but  we  lean  to  the  doctrine  of  Sir  William  So.it 
and  Dr.  Lusliington,  as  better  applicable  to  the  cases  now  before  iis, 
that  when  a  vessel  is  actually  imder  contract  for  a  vovage  fn  ii  one 
ix)rt  to  another,  thence  -..  proceed  to  a  third,  she  has  such  "a  present 
existing  title"  in  the  freight  money  of  the  entire  voyage  as  to  autbori/e 
a  recovery  based  upon  the  total  freight  money  for  the  round  trip. 

Of  course  she  is  not  entitled  to  gross  freight,  and  we  must  ii  t  l,e 
understood  as  intending  any  application  of  this  principle  to  ;i  v. -el 
proceeding  under  a  mere  "expectancy"  of  finding  cargo  at  her  fir-t  prt 
of  call.  The  principle  only  covers  those  cases  where  there  is  nn  m- 
stir.inre  ,.f  freight  from  her  first  port  of  call  to  lier  second,  and  .i  pri.e 
stii       ted  to  be  paid  ther  -for. 


i  , 


THE  SHIP  CONCORD 


405 


We  have  discussed  and  ruled  upor  as  many  of  the  general  ques- 
tions submitted  m  the  argument  as  if  <:PPm=  t^ 

eithpr  for  rr.„n    V       ^^""'^"^  ^*  "  ^eems  to  us  wise  now  to  (iecide, 
either  for  counsel  s  convenience  or  in  justice  to  the  Government  o 
the  claimants     Other  points  which  have  arisen  in  the  long  arg^n  e" 
w^  shall  consider  as  they  are  brought  before  us  in  specific  ^ases     S 
object  of  obtaining  from  the  court  a  ruling  upon  ge\^ral  princ  pi  J  i 
m  our  opinion  now  sufficiently  attained 

We  file  herewith  that  they  may  be  reported  to  Congress,  our  con- 
c  usions  of  fact  and  law  in  many  cases.  This  opinion,  with  those 
already  delivered,  contain  the  conclusions  which  in  our  judornent 
affect  the  liability  of  the  United  States  therefor  ^     ^ 


The  Ship  COSCORD'  [and  OrirRR  Cases] 
[French  Spoliation,  1589.  490,  507.^1587^556.  5.561.  4037.  600.     Decided  April 

On  the  Proofs 
The  ^^^^cnra.  on  a  voyage  from  Canton  to  Philadelphia,  .s  seized  Fehrnary 
1!         ^y^""""^  P"^^"''"  ^"d  ""i«l  into  the  IsK-  of  France    whore 
the  vessel  and  cargo  are  "confiscated"  on  the  ground  that  the  Governor- 
General  of  the  Isle  of  France  has  proclaimed  that  "France  a.d  th^rZd 
States  are  .«  a  state  of  hostilities  from  the  month  of  July.  ,70' aid  that 
tnbunalsare  re,u,red  to  decree  the  confiscation  of  all  LZ:.n     cs^ 
brouuht  xnto  th^s  port  u-ith  the  car.,ocs  on  board." 
I.  At  various  times  between   179.?  and   1800  there  was  much   that  l,«,ked  like 
war  between  France  and  the  United  States,  but  the  United  S  2 
ceased  to  hold  France  pecuniarily  responsd.le      r  the  act,  of  h  "'" 

and  privateer,,  and  France  never  denied  her  re  p  .,      i,     ^      ^■:^': 

n.  BCTwcn  1793  ,i,j  ,m  ,h,  ..„„|„„  f„  ,,,„,..,,  „„„„  ,  ,  .   ,„ 

...,,,  ,™.„  ,„     Ti. „ ;.:  ~;;:,,i';    ;::;',7  ;; 


'  ^""'■'  °'  Claim,  Reports,  vol.  .15.  pa>{e  4,!.'. 


"■">"«/' 'il.  ()  tt\ 


m 


406 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


in.  Under  tlie  French  spoliation  act  an  indebtedness  on  the  part  of  original 
claimants  to  the  United  States  is  not  strictly  a  set-off,  as  no  judgment  can 
be  rendered  in  these  cases;  but  it  is  an  equity  which  Congress  may  well 
consider,  inasmuch  as  the  relief  to  be  afforded  is  a  matter  of  conscience 
and  equity.! 


NoTT,  Ch.  J.,  deHvered  the  opinion  of  the  court: 

On  the  28th  of  November,  1798,  the  American  .ship  Concord  sailcil 
from  Canton  bound  for  Philadelphia. 

*  )n  the  6th  of  February,  1799,  she  was  =topped  on  the  high  sea> 
I.y  ihe  French  frigate  La  Prudente.  The  captain  of  the  frigate  fuund 
n  .thing  in  the  ship's  papers  to  justify  detention,  and  accordingly  al- 
lowed her  to  proceed.  But  upon  further  reflection,  after  an  interval 
of  .-everal  hours,  he  reconsidered  his  determination  and  resolved  to 
t.ike  the  responsibility  of  seizing  the  Concord  and  of  sending  hoi  in  t ' 
tlu  Isle  of  France  for  a  further  examination  by  the  authorities. 

The  story  of  her  seizure  is  best  told  by  her  captain  in  his  pn.ti'st: 

Slie  proved  to  be  the  French  frigate  or  corsair  La  I'nidcnl,-, 
Cajp.  JolitT.  from  the  Jsle  of  France,  on  a  criii:-e,  wIm,  aftci 
strictly  examining  my  sliip's  papers,  bills  of  ladir,,,.  etc..  ordeied 
ni>  interpreter  to  inform  nie  it  was  not  in  his  power  to  detain  me. 
as  my  papers  siiowed  the  siiip  ami  cargo  to  he  neutral  i)roi)ert>  , 
at  same  lime  returned  nie  my  papers  with  orders  to  proeee-l  mi 
my  voyage  Accordingly  I  returned  on  board  the  (.  mhord;  M 
1  p.m.  made  sail  on  our  course,  the  frigate  doing  the  same.  Imt 
st^nHing  about  two  (xiints  more  north;  at  half  past  3  p.m.  li  iMea 
colors  on  hoard  the  frigate:  we  hoisted  ours  also;  the  frijj.ite 
came  up;  the  captain  ordered  us  to  heave  to  until  he  sent  his  l',  it 
on  board,  which  came  with  three  ot^cers.  and  orders  for  me  ..r  tin 
supercargo  to  repair  on  board  the  Prudente,  with  all  letter-., 
papers,  invoices,  etc.,  relating  to  ship  or  cargo.  According' 
Mr.  Dobell,  percargo  of  the  Concord.  to<ik  the  papers  and  wen; 
on  board  the  frigate.  Soon  after  the  Ixiat  returned  for  M. 
Dobell's  desk  and  small  Ikix,  contaitiing  sundry  orders,  invoiee-. 
etc.,  resiK-cting  the  outward  cargo.  The  2d  officer  .ind  -M 
boy  were  also  taken  on  lx)ard  with  Mr.  Doliell,  and  all  detair,e.| 
durmg  the  night      At  8  p.m.  the  frigate  hailed  and  ordered  ili. 

'  I'aji's  ■).■>!  to  441  of  thi<  case  arc  omitted,  as  being  merely  lists  of  claimai.l> 
ami  „  K.i;:!-  clairud.  They  contain  nothing  <>f  importance  for  the  purpo5e.s  of 
this  volume. 


THE  SHIP  CONCORD 


407 


officers  to  make  sail  after  ner,  and  steer  W.  b.  N    du.he  the 
mght.     At  6  a.m.  the  frigate's  boat  came  for  me      I  St  on 
board,    1  he  captain  demand.  ]  my  former  bills  onadinr  Tor  ou 
ward  cargo,  for  which  I  went  on  board  the  Ccnrorrf  and  reU.rne  I 

Sm^Ss  j^i^^z  t:^-^  -H  r^ 

I?a;:';es°a!d^""^^-  ""■''''  "'^  -'-^'  -  ^-  l0.r,TyTMJZ 

On  a  subsequent  day  the  prize  court  in  the  Isle  of  France  renderC 
a  decree    conh.cat„,g"  the  ship  and  cargo.     The  decree  recites      at" 
the  sh,p  Concord  sailed  under  the  American  flag  and  an  \m  ricl, 
passport;  that  the  captain,  officers.  an,l  crew  were  all  sub    ci     > 
natu^n    and  that  her  car.o  belonged  to  American  subjeL^    ,     .^ , 
rhdadelphia.     In  other  words,  the  Coucord  was  one  if  the  vo    1' 
u    the  American  vessels  whose  conduct,  ownership,  and  the  character 
o    whose  cargo  ..re.  i„  the  opinion  of  French  tribunals,  e.  c    rd  a, 
absolutely  une.xceptionable. 

Nevertheless    -^e  tribunal  pronounced  a  decree  of  confiscation  (not 
.ndemnation)  .  the  sole  ground  that  the  .iovern.r-General  of 

M  of  France  had  on  the  2M  day  of  June,  1799,  published  a  procla 
mation  declaring  that  France  and  the  United  StLs  were  a„'n id 
been  m  a  stat.   of  hostility  from  the  9th  day  of  July.  1798    ^id  re 

qmnng  a  1  tr.,.nals  to  confiscate  all  Am^iean  vessds- which  hrje. 
or  should  1.  brought  into  French  port.  w„h  the  cargoes  on  W 

ceL  T^'T^  '''"'"  -'confiscated"  and  "condemned"  rested  o  i 
certain  French  decrees.  If  a  vessel  was  mailing  under  a  neutrnl  fl.T 
'  .  or  her  cargo  might  be  condemned  for  cai.e ;  if  she  were  ^.^  l^f 
she  aiid  her  cargo  would  thereby  be  liable  to  confiscation  ^' 

It  .s  apparent  thnt  .ome  unfortunate  American  vessel  whose  m-.s 
UT  earned  a  c.n„.,.sion  un.ler  the  . /,-,  .,f  ./„/„  ,,   ,-,^  ^,   4^"' ^- 
.78).  had  fallen  into  the  hands  of  ,he  French  governor,  and  that  i; 
.  :ul  .,    r«,pon,  without  instructions  from  hi.  own  Government    oro 
>-.a.med  war  as  existing  between  the  two  countries      It  is  /^'n       , 
Pnncinle  that  while  a  natio,,  ,s  .„ioyi,„  „.  a,.vanr;g^  ^  ^3' 7  sh 
must  be  held  to  the  ohlig,-,tion.  of  pence  and  be  resLnsibir^ 
other  things,   for  the  acts  ,  f  l.r  officer-  and  ..en^'Z  t;.^' 


408 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


war  co...es  and  those  responsibilities  cease,  she,  while  encountering  the 
pains  and  penalties  of  war,  may  exercise  the  belligerent  right  of  cap- 
ture.   At  various  times  between  1793  and  1800  there  was  much  which 
looked  like  war  between  the  two  countries.     But  notwithstanding  the 
act  of  the  9th  of  July,  1798,  and  the  decision  of  the  Supreme  Court  in 
Bas  V.   Tingy   (4  Dall.  37),  and  the  historic  battle  of  the  Constel- 
latwn  with  La   Vengeance,  wherein  each  ship  nearly  destroyed  the 
other  and  the  French  frigate  came  into  Curasao  di.smasted  and  sink- 
ing, with  50  killed  and  1 10  wounded,  it  has  been  held,  and  it  must  be 
held  again,  that  no  war  existed  which  released  France  from  her  in- 
ternational responsibilities,  or  which  authorized  her  to  destroy  Ameri- 
can commerce.     The  question  has  been  exhaustively  argued  and  e.x 
liaustively  examined,  and  all  the  information  and  learning  which  it  is 
susceptible  of  receiving  will  be  found  embodied  in  the  opinions  in 
the  cases  of  Gray   (21   C.  Cls.  340),  Cushinq  (23  id.   1),  and  tli.- 
John  (22  id.  408).     In  a  few  words  it  may  be  said  that  the  I'nit.cj 
States  never  ceased  to  hold  France  pecuniarily  responsible  for  the  acts 
of  her  cruisers   and   privateers,  and  that   France  never  denied   her 
liability    for    unjustifiable    seizures    and    condemnations.      Moreover. 
France  never  interjiosed  the  defense  of  belligerent  rights,  but,  on  the 
contrary,  again  and  again  reiterated  her  willingness  to  discharge  her 
treaty  and  international  obligations  whenever  the  United  States  would 
discharge  theirs,    A  defense  which  France  could  not  now  and  did  not 
then  set  up,  the  United  States  can  not  set  up.    Where  France  claimed 
no  exemption  the  United  States  can  claim  none  for  her ;  where  they 
can  clain;  no  exemption  for  France,  they  can  set  up  none  for  them- 
selves.    The  question  of  liability  to  be  determined  is  the  liability  of 
France. 

Another  fact  to  be  considered  is  that  this  warfare,  such  as  it  wa., 
existed  only  in  what  were  then  remote  parts  of  the  earth,  the  West 
India  Islands,  the  Straits  of  Sunda,  the  Chinese  .Seas,  etc.  At  tin- 
time  when  the  governor  of  the  Isle  of  France  was  proclaimini,'  war 
and  confiscating  American  vessels  for  no  fault  of  their  own.  t!u- 
Tribunal  of  Commerce  in  Bayonnc,  in  the  immediate  presence  of  the 
French  Cnernment.  was  proceeding  uiy)n  the  basis  of  peace.  an<l  ;id- 
ministering  justice  according  to  the  accepted  principles  of  interna 
t.onal  law.  except,  of  course,  where  those  principles  were  varied  hv 
French  decrees.  Thus  in  the  case  of  the  ship  rictory.  H.itton.  master 
^i..t  reported  1,  captured  October  ft,  17Q9.  while  on  her  voyage  fro:;i 


THE  SHIP  CONCORD  ,^ 

409 

Norfolk,  to  London,  the  tribunil  h^iri  ,u  . 

board,  being  Eng.isi,  w^r  sib  /T  ',fp:  ,rtLf  ^'^  P^P-ty  on 
captors  -could  not,  while  at  se.  ^J^P'""'^ '  ^^^^'  '"asmuch  as  the 
enemy's  property  found  on 'he Thin     h  ^'  ^T'^   "'''"^^   ^^- 

the  ship  into  a  port  for  its  discharg  ^^  2  h""  T'""'''  '°  '""^ 
for  decreeing  damages  to  the  Ame'r  can  sh.p  fiu  h"  ""  "°.""°" 
crees  "the  surrender  of  Captain  H-,h         r    ^  ^  ''°""  ^^^^^  '^^- 

l-er  rigg,ng.  apparel,  a  pur  ,^s  ::,1'%"''.^^'>  ^''^'->'  -"'= 
to  him  in  the  conditioi  she  vva  at  t ,  '^^  ''''•  ''  ""'  ''''"'^ 
that  like  surrender  .h.ll  be  11  ','."'%"r  °^  '^'  ^^'^"'•^;  ^'^'^ 
-•ative  to  said  ship.  Jd.  L^a^l  be t^'ll  T  ^fT  ^"".^— - 
«oods  which  were  not  British' pr^pertT'  And  th  '"""""J  "'  '"'^ 
ceeds  to  decree  the  condemnation  ^i  the  En Jith  or  """■'  '.'"  '''°- 
th"  sh,p.  with  the  proviso  "that  t\Jl  '^  ^^^">'  ^"""'^  «" 

the-^on  to  the  said  Captain  ulL  ^'  ,'  "^^'°''-  ^^^^  ^'^^  ^^eight 
of  lading,  which  .^I  be'  c"d  1  Fr^.'^n'''''  '"'  '""'^  '"  ''^  "^"^ 
exchange  on  Hamburg  a  d  ,  '  of  Z  """'  T"""''"^  ^°  ^^^^^ 
^killed  and  upon  whom  the  prtL.  shall  '^  °"  '""''"  '>'  P^^^''^ 

i"^.  by  persons  named  bv  U,e  corrt  "        '""  "'  '"  '*^^'"''  °^  ^S^^'^" 
Th,s  certainly  was  all  that  any  neutral  could  ask 

^^;;^tion.   and   .ts   decision    was   a„  Z ^^r^^^I  ^^^ 

tnf  sh^::r:^;^£^^^'S  r^.'^"r.°^  --^-  "^  ^^-^'^ 

<1oubt  ,s  n„t  ignorant  of  the  ddiverv  Tirr'""';*-*"^  ^^■'■"'""' 
ernment  of  the  Cnitc!  S  utes  to  tl  e  J      ,"  '"'T  ''>"  '^^^  '^°^- 
States  nor  of  the  terms  in  which  .1  !c    V^^'  '''  ^^^  '^'"^  '-'"'te-l 
nrv  and  up  to  the  ,rese"n    ime       ,!  '*^"7;^^e  conceived.  That 
;t^  Te^arded   this   c ircumlta  ,4   and      1  ""    ''7"  '"-"-'tested  that 
United  States  of  the  month  of  Tuivrl   "f  Congress  of  the 
t.on  of  war  or  as  ho^tilitie      cr"  nst     ;..i       '  ■^''^"'  ^  ^  '^''^^'''- 
of  the  legislative  body  a  law  de^h  i ,.   H      P '"'V'  ''"^  ""'  ^'^'^ 
a  state  of  war  with  the  Un  ted  S^^e'      V     ?''  '  "'''"°"  '"  ''^  ■'" 
•^tatc  of  war  can  not  be  e  ^bli  h    .        V'V'  •^"'<''-i«-    That  a 
of  the  legislative  body      r^ u      ll    "'  T''''^  " ''^'""t  a  law 


410  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

founded  upon  any  law,  and  can  not  and  ought  not  to  be  pro- 
nounced. The  said  ship  hesides,  not  having  opposed  any  resisL- 
ancc  suffered  itself  to  be  visited  at  the  summons  which  was 
made  to  it  by  the  said  privateer.  There  is,  then,  no  occasion  to 
accede  to  the  demand  of  the  captors  upon  this  point. 

This  case  was  appealed  to  the  civil  tribunal  of  t'-  department,  and 
thence  to  the  Council  of  Prizes,  which  latter  tribunal,  on  the  13tli 
December,  1800,  released  the  vessel  and  cargo,  in  accordance  with  the 
judgment  of  the  two  lower  tribunals.  (Schooner  John,  Blackltr, 
master.  22  C.  Cls.  408.) 

The  counsel  for  the  United  States  has  argued  with  great  mgenuity 
and  learning  that  these  decrees  were  rendered  at  the  time  when  the 
treaty  of  September  30.  1800,  was  a  matter  of  negotiation:  that  tli» 
French  Government  then  desired  to  retain  America  as  a  friend  and 
not  to  drive  her  over  to  the  enemies  of  France,  who  then  numbered 
nearly  all  of  the  sovereignties  of  Europe;  and  that  France  in  effect 
waived  her  legal  and  maritime  rights  so  that  she  might  smooth  the 
way  to  an  adjustment  of  all  differences  with  the  American  Govern 
ment.  This  might  be  so  held  i*  it  were  a  defense  which  the  United 
'States  could  properiy  set  up— if  the  question  of  liability  were  no! 
always  the  question,  "What  was  the  liability  of  France  before  the 
claims  were  relinquished  to  her?"  It  seems  undeniable  that  if  thi- 
court  were  an  international  tribunal  and  France  were  an  actual  defer- 
.lant  in  court,  no  one  would  think  it  possible  for  her  to  say  today 
what  she  did  not  say  through  her  own  tribunals  jusi  one  hundred 
years  ago,  when  the  ir.atter  was  in  litigation  and  the  rights  of  the 
Xmerican  owners  a  matter  of  contemporaneous  adjudication.  Ac- 
cordingly it  must  be  held  now.  as  it  has  been  held  before,  that  there 
was  no  war  which  accorded  to  France  general  belligerent  rights  or 
which  subjected  an  American  vessel  to  capture  and  condemnation  \t 
she  were  at  the  time  without  fault 

It  is  to  be  noted  in  this  case  that  the  Concord  was  not  subject  to 
condemnation  or  confiscation  because  of  any  act  or  paper  of  her  own. 
She  did  not  resist  search;  she  did  not  attempt  flight:  no  objection  was 
raised  by  the  French  tribunal  to  any  want  of  papers  or  to  the  char- 
acter of' any  paper  which  she  carried.  The  decree  narrates  that  she 
had  an  American  passport :  but  commissions  under  the  act  of  July  9. 
1798.  were  generally  styled  by  the  French  tribunals  letters  of 
mar(|iie.     She  does  no.  appear  to  have  had  any  armament  whatever. 


THE  SHIP  ROSE 


411 


and  her  crew,  as  far  as  appears,  consisted  of  only  18  men  The 
quesfon  therefore  whether  the  carrying  of  a  commission  under  th. 
act  of  July  9,  798.  was  evidence  of  aggressive  intent  which  would 
render  her  hable  to  capture  and  condemnation  is  not  presented  hv 
the  evidence  ir  this  case. 

The  counsel  for  the  Government  has  filed  a  motion  to  reopen  son.e 
of  the  cases  agamst  this  vessel  so  a.  to  enable  the  defendants  to  plead 
:m  mdebtedness  on  the  part  of  the  original  claimant,  to  tl,e  United 
Mates.  Such  a  cross  demand  is  not  strictly  a  set-off.  inasmuch  a. 
the  court  does  not  render  judgments  in  these  cases,  but  neverthele^. 
It  IS  an  equity  which  Congress  may  properly  consider  in  cases  wher^- 
the  relief  to  be  aflforded  by  Congress  is  a  matter  of  conscience  an/l 
equity.     (Ship  Parkman,  present  term.) 

All  of  these  motions,  with  one  exception.  ha;e  been  withdrawn  or 
abandoned. 

In  the  case  of  Peter  Blight.  Xo.  1589,  it  i=  fo„nd  that  $1  7S^  12 
l)ecame  due  to  the  Urited  States  on  a  custom-hou^e  borui.  and  Jherc 
IS  no  evidence  to  establish  payment.  Whether  this  ...nnarent  indebted- 
ness of  Peter  Blight,  the  original  claimant,  should  be  deducted  from 
the  award  in  favor  of  his  administrator  is  a  ouestion  restin-r  exclu- 
sively in  the  discretion  of  Congress,  and  in  regard  to  it  the  court 
reports  no  conclusion  and  expresses  no  opinion. 

The  order  of  the  court  is  that  the  findings  and  conclusion^  now  filed 
be  reported  to  Congress,  together  with  a  copv  of  this  opinion 


TlIF   SlIIl'   ROSF^    f AM)  Dtiikr   r\SFSl 

(French  Spoli.ifinns,  120.  422.  lO.^.  2720.  2842,  4,i]8.  .^87?   44<!4   4!'n   4!;]      De 
cirted  .April  22.  1901] 

On   the  Proofs 

Tlir  .American  ship  Rose  resists  search,  in  an  action  lasting  2-;  hours  in  whic'i 
she  hises  3  killed  and  14  wounded,  and  the  French  privateer  2.S  killed 
and  21  wonrded. 

I.  Grave  apprehension  of  illeRal  condemnation  will  not  junifv  a  neutral  vessel 
in  rcsistipK  the  riKht  of  search  hy  a  bclli»;er<  nt. 
II.  Forcible  resistance  is  good  ground  for  condemnation,  except  in  ca<es  wliere 
a  neutral  is  justified  in  defending  against  extreme  violence  threatened  hy 
a  cruiser  grossly  abusing  his  commission. 

■  Court  of  Claims  Reports,  vol.  36,  page  290. 


412 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


III.  The  Act  of  June  .'5,  1798^  (1  Stat.  L.  522),  authorizing  American  merchant 

vessels  to  defend  a'"iinst  French  depredations,  could  not  change  tlie  law 
of  nations  or  imposi   a  new  •nternational  obligation  upon  France. 

IV.  The  French  spoliation  act  refers  to  municipal  and  international  law  and 

to  treaties.  The  court  must  apply  each  only  where  it  is  properly  applicable. 
V.  Where  no  wrong  was  done  according  to  international  law  or  treaty  stipula- 
tions, a  case  did  not  come  within  the  terms  of  the  treaty  of  1800-  (.\n. 
II),  and  no  liability  was  assumed  by  the  United  States. 
VI.  The  jurisdictional  act  contemplates  this  court  as  sitting  in  the  character  of 
an  international  tribunal  to  determine  the  diplomatic  rights  of  the  United 
States  against  France. 

The  Reporters'  statement  of  the  case : 


The  following  are  the  facts  of  this  case  as  found  by  the  court : 

I.  The  ship  Rose,  William  Chase,  master,  sailed  on  a  commercial 
voyage  from  Xewbur>'port,  Mass.,  on  the  20th  of  March,  1799,  bound 
for  Surinam,  and  from  thence  sailed  on  the  23d  day  of  July,  ITW, 
bound  home  for  Xewburyport. 

While  pursuing  said  voyage  she  was  captured  on  the  high  seas,  on 
the  31st  day  of  July,  1799,  by  the  French  cruiser  Conquest  of  liK\'t'- 
mounting  14  gims  and  120  men,  after  an  action  of  two  hours  and  a 
half,  in  which  the  master  of  the  Rose  lost  his  mate  and  2  men  killed 
and  14  wounded,  and  the  Frenchman  had  25  killed  and  21  wounded. 
after  which  the  Rose  was  carried  into  Guadeloupe,  where,  on  the  18tli 
Thermidor,  year  7  (August  6,  1799),  said  vessel  and  her  cargo  were 
condemned  by  the  tribunal  of  commerce  sitting  at  Basse-Terre,  (iuade- 
loupe,  under  the  following  decree : 

Judgment  and  condemnation  of  the  .\merican  ship  Rose,  Capt 
W.  Chase,  captured  by  the  privateer  Egypt  Conquered. 

18  Thermidor,  7th  year.  E.xtract  from  the  rolls  of  the  royal 
court  of  Guadeloupe  and  its  dependencies. 

In  the  name  of  the  French  people. 

The  court  of  commerce  and  prizes,  established  on  the  isle  of 
Guadeloupe,  sitting  at  the  Basse-Terre  of  the  said  isle,  at  its  usual 
session,  on  the  18th  of  the  month  Thermidor  and  the  7th  year  of 
the  French  Republic,  which  is  one  and  indivisible. 

Preamble.  In  view  of  information  communicated  the  14tli  ami 
ISth  of  the  present  month,  Thermidor,  by  the  justice  of  peace 
stationed  at  Liberty  Port,  which  information  relates  to  the  cap- 


Supra,  p.  59. 


= Infra,  p   4S7 


THE  SHIP  ROSE 


413 


ture  of  the  American  ship  Rose,  of  Xewburyport,  Capt.  William 
Chaie,  by  the  privateer  called  E<;\'pt  Conquered,  Capt.  Lyklama. 
The  examination  of  the  papers  of  the  said  ship  by  citizen  Magne 
sworn  interpreter  of  the  English  language,  at  Liberty  Port,  which 
papers,  as  well  as  the  translation  of  them,  have  been  lodged  in  the 
office.  The  associate  sworn  interpreter  of  the  English  language 
m  this  city  and  citizen  Miiiard  being  present  at  the  reading  of 
them.  In  view  of  these  docunieiits,  the  president  in  his  report 
and  the  overseer  of  the  directorv  in  his  suit  present  the  following 
as  the  result  of  their  deliberations : 

Considering  (according  to  the  above-mentioned  documents  and 
information)  that  it  is  evident  that  the  captain  of  the  said  ship 
has  neither  knowledge  nor  invoice  of  his  cargo  taken  at  Surinam, 
which  circumstance  makes  it  impossible  to  know  the  real  owner 
of  the  said  cargo. 

Considering  that  his  shipping  paper  (role  d'cquipat^c)  is  not 
such  as  is  prescribed  bv  the  model  annexed  to  the  trcatv  of  the 
6th  February,  17/8. 

Considering,  finally,  that  the  said  cap.ain  was  bearer  of  a  com- 
mission from  the  President  of  the  L'nitcd  States,  wliich  author- 
ized him  to  capture  French  armed  vessels  and  to  carry  them  into 
any  port  of  the  United  States;  a  commission  in  virtue  of  which 
the  captain  of  the  said  vessel  not  only  did  not  obey  the  summons 
of  the  French  privateer,  but  attacked  it  and  defended  himself 
till  he  was  subdued  by  force  of  arms.  In  view  of  these  facts  we 
shall  refer  to  the  following  articles  in  justification  of  our  pro- 
ceedings : 

In  the  first  place  the  3d  article  of  the  judgment  of  the  Execu- 
tive Directory  reminds  all  French  citizens  that  the  treaty,  passed 
the  6th  February,  78,  has  been,  according  to  the  terms  of  its  12th 
article,  legally  modified  by  that  passed  at  London  the  19th  Novem- 
ber, 1794,  between  the  United  States  of  .America  and  England. 
Consequently,  there  is  substituted  for  it  the  17th  article  of  the 
treaty  of  I^ndon,  dated  19th  November,  1794,  which  reads  as 
follows:  All  enemies'  merchandise,  or  that  which  is  not  s.itis- 
factorily  proved  neutral,  and  which  is  shipped  under  .American 
colors,  shall  be  confiscated,  but  the  vessel  on  board  of  which  it 
shall  have  been  found  shall  be  set  at  liberty  and  returned  to  the 
owner.  In  the  second  place,  the  4th  article  of  the  same  judg- 
ment is  expressed  in  these  terms:  "In  conformity  with  the  law 
of  the  14th  February,  1793,  the  rules  and  regulations  adopted  the 
21st  October,  1744,  and  the  26th  July.  1778.  respecting  the  mode 
of  proving  the  ownership  of  vessels  and  neutral  merchandise, 
shall  be  executed  according  to  their  form  and  tenor.  Conse- 
quently every  .American  ship  shall  be  declared  a  prize  which  shall 
not  have  on  board  a  shipping  paper  in  good   form,  such  as  is 


414 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


prescribed  by  the  model  annexed  to  the  treaty  of  the  6th  February, 
1778,  and  the  execution  of  which  is  ordered  by  the  25th  and  27th 
articles  of  the  same  treaty.  In  the  third  place,  the  12th  article 
of  the  ninth  record  of  prizes,  contained  in  the  statutes  of  the 
month  of  August,  1681,  runs  thus:  Every  vessel  which  shall 
refuse  to  strike  its  colours  after  the  summons  made  by  our  vessels 
to  those  of  our  subjects  armed  for  r  shall  be  obliged  to  do  it 
by  means  of  artillery  or  otherwise  aiul  in  case  of  resistance  and 
contest  shall  be  declared  a  prize.  The  court  authorizing  the  suit 
of  the  Executive  Directory  declares  a  prize  the  said  American 
ship  Rose,  her  apparel  and  cargo,  and  orders  the  sale  of  them, 
in  the  customary  forms,  for  the  benefit  of  the  captors,  and  those 
who  armed  and  were  interested  in  the  privateer  Egypt  Conquered. 
an  inventory  being  previously  made  of  the  whole,  in  presence  "f 
the  constituted  authorities.  Made  and  executed  at  the  court  in 
its  said  sitting,  at  which  were  present  citizens  .-Anthony  John  Bon- 
net, president;  Anthony  Cloder  and  Gabriel  Capoul,  judges,  and 
Lewis  Christopher  Blin  Herminier,  registers,  the  said  day,  month, 
and  year. 

Signed  at  the  registry. 

Bonnet,  President,  and 
Bun  Herminier,  Register. 

II.  The  ship  Rose  was  a  duly  registered  vessel  of  the  United  States, 
of  2.S0  36/95  tons  burthen,  was  built  at  .Amesbury,  Mass.,  in  the  year 
1797.  and  was  owned  by  William  Bartlett,  a  citizen  of  the  United 
States. 

III.  The  cargo  of  the  Rose  consisted  of  coffee,  cotton,  cocoa,  and 
sugar,  and  was  principally  owned  by  William  Bartlett,  the  owner  of 
the  vessel.  William  Chase  and  Edmund  Bartlett,  citizens  of  the  United 
States,  owned  small  portion:^  of  the  cargo,  and  Samuel  Hopkinson, 
Enoch  Hale,  Jr.,  Smith  Adams,  and  .\bel  Hale  had  adventures  oti 
board  said  vessel. 

IV.  The  losses  by  reason  of  the  capture  and  condemnation  of  the 
Rose,  so  far  as  claims  have  been  filed  in  this  court,  were  as  follows : 

The  value  of  the  vessel $10,640.00 

The  freight  earnings  for  the  voyage 4,173.00 

The  value  of  the  cargo  owned  by  William  Bartlett 66.336.08 

The  value  of  the  cargo  owned  by  William  Chase 4.9.^9.54 

The  value  of  the  cargo  owned  by  Edmund  Bartlett 3.820.00 

The  premium  of  insurance  paid  by  Edmund  Bartlett 20000 

■Amounting  in  all  to $90,129.52 


I   I 


THE  SHIP  ROSE  4JJ 

Special  Findings  Rel.ktin-g  to  the  SEVER.^L  Case:. 

y.  Case  No  120.    William  Bartlett  was  the  sole  owner  of  the  vessel 

and  a  part  of  the  cargo,  upon  which  U  does  not  appear  that  there 

was  any   insurance.  ^  ^ 

His  losses  were  as   follows: 

The  value  of  the  vessel. . . 

The  freight  earnings  for  the';.o;age:  1 ! ! ! ! ! ^  Jm m 

The  value  of  the  cargo  owned  by  him .' :;:;:; ; ; ; ;  66,336% 

Amounting  in  all  to .$81,149.98 

\T.  Case  Xo.  1056.     Uillian.  Chase  was  the  owner  of  a  portion  of 
tlZT'  "'""  "■''^'^  '''''  ^°"  -'  ^PI--  ^o  have  been  any  in 
His  loss  was  as  follows  : 

The  value  of  his  portion  of  the  cargo $4  959  54 

VH.  Case  No.  2720.    Edmund  Bartlett  was  the  owner  of  a  part  of 
""\^1    "'  '"'"''^  ^''  P°"'^"  °f  the  cargo  on  the  6th  dav  o 

June    1.99,  m  the  office  of  John  Pearson,  in  th?  sum  of  $2  5 00  Vv 

mg  therefor  a  premium  amounting  to  $200  ^^ 

Thereafter  the  said  John  Pearson,  as  agent  for  the  underwriters 

paKl  to  ^the  said  Edmund  Bartlett  the  sum  of  $2,500  as  and  Ta 

His  losses  were  as  follows: 

The  value  of  his  portion  of  the  cargo «:^  9^ no 

The  premium  of  insurance  paid. ...    .'.'.■.■.■.■.'.■.■■■        20O0O 

Total :;: 

$4,020.00 

Less  insurance  received « >  qm  nn 

Less  two  boxes  hats  sold '.'.'..'.'."...'.'.     "'l2o'oo 

$2,620.00 

Leaving  a  net  loss  to  Edmund  Bartlett  of . . . .  $1^40000 

Jk'allon.'^'"  ''''•-  .-^'^'^"  ^^'^"•^-  J'---  Pn-nce.  and  Zebedee 
Cook,  all  of  whom  were  citizens  of  the  fnited  States,  and  others  who 
h..ve  not  appeared  in  this  court,  as  underwriters  in  the  offic    of  John 


416  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Pearson,  insured  Edmund  Bartlett  on  the  6th  of  June,  1799,  on  his 
portion  of  the  cargo  in  the  sum  of  $2,500. 

Thereafter  the  said  John  Pearson  pai<>  for  said  underwriters  to  .-aid 
Edmund  Bartlett  the  sum  of  $2,500,  as.  and  for  a  total  loss. 

The  underwriters  on  said  policy  who  have  appeared  in  this  ourt 
by  legal  representatives  and  the  loss  sustained  by  each  are  as  follow  - ; 

John  Weils $300.(X) 

James  Prince  5(  x_i.00 

Zebedee  Cook    200.00 

IX.  Case  No.  4320.  Edmund  Kimball  and  Zebedee  Cook,  citizens  of 
the  United  States,  as  underwriters  in  the  office  of  John  Pearson,  on 
the  18th  day  March,  1799,  insured  Smith  .'\dams  and  Afiel  Hale  on 
their  adventure  in  the  sum  of  $350. 

Thereafter  the  said  John  Pearson,  as  agent  for  the  said  iimkr- 
writers,  paid,  on  the  18th  of  January-,  1800,  to  the  said  Smith  .•\dani> 
and  Abel  Hale  the  sum  of  $350  as  and  for  a  total  loss.  It  doe.,  not 
appear  that  the  said  ;\dams  and  Hale  were  citizens  of  the  I'liitcil 
States.  The  underwriters  upon  said  policy  have  appeared  in  tlii-  la-e 
by  their  legal  representatives  and  the  loss  sustained  by  each  i-  as 
follows : 

Edmund   Kimball    $l~.rOO 

Zebedee  Cook    175. (X) 

.X.  Case  No.  4351.  John  Pearson,  a  citizen  of  the  L'nited  St.ites.  ns 
an  underwriter  in  his  own  office,  on  th*  20th  cf  laminry.  17'».  in-iiml 
Samuel  Hopkinson  and  Enoch  Hale  !i..  on  t.heir  adventure  in  the 
sum  of  $100. 

Thereafter  the  saic  'ohn  Pearson.  the  28th  of  "  muary.  ISOO,  p.iiii 
to  the  said  Samuel  Hopkins,  ii  and  Er  .rr  Huit.  T  the  sum  nf  ^100 
as  and  for  a  total  loss.  It  does  not  msm^r-  tiat  -;;id  Hopkin>.  u  nnd 
Hale  were  citizens  of  the  ■ 'nited  '-•r?.^. 

The  underwriter  upon  .-aid  poiii-  m?  acBfBEreti  in  this  case  h\-  hU 
legal  representative  .mc  ihe  loss   .iT?5ame<i  b-    -sa  ;<=  as  folic ws 


John    Pearson 


.$10000 


XT.  The  claimants  hav-e  p?sdm-f^   rrtr^        adrsanistration  npiMi  tlie 
estate  represented  by  than  and  hair  mrwea  to  tfa;  satisfaction  of  the 


THE  SHIP  ROSE 


417 


court  that  the  persons  whose  estates  they  represent  are  the  same  per- 
sons who  suffered  loss  through  the  capture  and  condemnation  of  The 
Kose. 

Said   claims    were   not   embraced    in   the   convention    between   the 

a"^^ ,Sf  %r  ^'P"^"'  °^  ^'^""  '^""^'"d^'J  °"  the  30th  of 

April  1803  They  were  not  claims  growing  out  of  the  acts  of  France 
allowed  and  paid  in  whole  or  in  part  under  the  provisions  of  the 
treaty  between  the  United  States  and  Spain  concluded  on  the  22d  day 
of  I-ebruary    1819,  and  were  not  allcwed  in  whole  or  in  part  under  the 

Jt'h  of  July   183l'  '''''■'  ^'''''"  '^'  ^'"''''^  ^'''"  '"^  ^'^""  °^  '^' 
fhe  claimants  in  their  representative  capacity  are  the  owners  of  said 
clanns^  wh.ch  have  never  been  a.s.i,.„ed;  nor  does  it  appear  that  anv 
of  said  claims  are  owned  by  an  insurance  company. 

Argument  for  the  Claimants 
Mr.  C.  IV.  Clagett  for  the  claimants: 

r  ^'r'- /"'''*!''"*'  ^°''"'  ^^'-  ^''-  "■  ^'°<^'hecs,  Mr.  Edward  Lander 
turtts  6-  Pukett.  and  Mr.  John  IV.  Buttcrfield  represented  differen 
claimants.) 

If  a  vessel  and  cargo  prove  to  be  neutral  and  in  no  way  transgress 
the  rights  of  belligerents,  the  right  of  search  is  exhausted  and  the 
vessel  must  be  permitted  to  proceed.  (Lawrence's  Wheaton,  846- 
\\oolseys  International  Uw,  sec.  10;  Hall's  International  Uw.  sec. 

ft  ua.  well  known  at  the  time  of  the  French  spoliations  that  the 
French  tribunals  condemned  nearly  all  American  vessels,  irrespective 
■  f  the  act  that  they  had  complied  with  all  the  requirements  of  inter- 
JintK.naM.aw.     (Hooper  v.  U.  S..  22  C.  Gs.  416;  Cushing  v.  U.  S.,  22 

If  search  k>.  made,  not  to  protect  belli^'erent  rights  hut  to  harass  a 
neutral  which  has  complied  with  all  the  requirements  of  international 
aw  for  non-compliance  with  the  resnilations  of  the  country  to  which 
the  searching  vessel  belongs,  the  attempt  to  search  is  a  wrong  which 
my  be  resisted  without  subjecting  the  vessel  to  condemnation.  (1 
Kent.  l.-,4 ;  Lawrence's  Wheaton,  866.) 

The  principle  applied  to  neutral  vessels  captured  bv  the  French  at 
this  time,  and  recaptured,  should  be  applied  to  cases  in  which  search 
was  resisted. 


418 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


It  is  a  settled  rule  that  neutral  vessels  recaptured  from  a  belligerent 
are  to  be  restored  without  payment  of  salvage,  on  the  ground  that  the 
vessel  would  have  been  restored  by  the  court  of  the  belligerent  coun- 
try; but  when  France  condemned  neutral  vessels  on  grounds  not  justi- 
fied by  international  law  the  rule  ceased,  and  salvage  was  allowed  in 
cases  of  recapture.  {The  Ouskaii,  2  Rob.  300;  Talbot  v.  Seetnan,  1 
Cranch.  1 ;  Hooper  v.  U.  S.,  22  C.  Cls.  416.) 

By  the  act  of  June  25,  1798,  Congress  authorized  American  vessels 
to  resist  visitation  and  search  by  the  French. 

A  court  of  the  United  States  has  no  authority  to  declare  tortious  acts 
whicli  Congress  has  declared  lawful.  (The  Chinese  Exclusion  Act, 
130  L;.  .S.  581-601.) 

Mr.  Charles  It'.  Russell  (with  whom  was  Mr.  Assistant  Attoriuv- 
Geucral  Pradt)  fur  the  defendants. 


Opinion  of  the  Court 

Wkldon,  J.,  delivered  the  opinion  of  the  court: 

The  facts  show  that  the  ship  Rose,  William  Chase,  master,  sailed 
on  a  commercial  voyage  from  Xewburyport.  Mass.,  on  the  20th  of 
March,  IT'.'Q,  bound  for  Surinam,  and  thence  sailed  on  the  _'3(1  of 
July,  1799,  bound  home  to  Xcuhur)))  .rt. 

While  pursuing  the  last  voyage  she  was  captured  on  the  high  h\ts 
on  the  21st  of  July.  1799,  by  the  French  cruiser  L'Ei^ypt  Comiiiisr. 
mounting  14  guns  and  120  nan;  after  an  action  of  two  and  oiie-liah' 
hours,  in  winch  the  master  of  tla  Rose  lost  three  men  killed  anil  14 
wounded,  and  the  French  lost  25  killed  and  21  wounded,  the  Ro.se  u.i- 
capturcd  and  taken  into  dnadeloupe,  where,  on  the  6th  day  of  August, 
]7'»,  the  vessel  and  cargo  were  condemned  by  the  trilnmal  of  com- 
merce, sitting  at  I'.assi-Tcrre,  ( iuadeloupe,  under  a  decree  in  whi^'i 
it  i-.  alleged  tliat  "'the  captain  of  said  ship  was  the  bearer  of  a  coni- 
mi-sion  from  the  I're-idciit  of  the  I'nited  States  which  authorized 
him  to  capture  French  armed  vessels  and  carry  them  into  anv  pott 
of  the  I'nited  States,  and  that  the  captain  of  the  vessel  resisted  until 
he  was  sniidncd  by  force  of  arms.  In  view  of  these  facts,  the  court 
makes  reference  to  articles  in  justification  of  said  proceedings."  Th<- 
findings  c-tablisli  the  fart  that  the  .American  ship  res.sfrd  mo^  vl: 
nroiisly  the  attempted  rigbt  ■  f  '^c-in-h  njxin  the  part  of  the  French 
ship,  and  we  are  to  determine  from  that  condition  as  an  incident  of  tie 
IS. : -lire  whether  such  sei/nre  and  condemnation  were  illegal. 


THE  SHIP  ROSE 


419 


The  legal  effect  of  resisting  search  on  the  part  of  the  American  ship, 
when  it  was  sought  to  be  exercised  on  the  part  of  the  French  ship, 
has  not  been  determined  by  any  adjudication  of  this  court  in  the  various 
cases  tried  under  the  Act  of  Congress,  giving  this  court  jurisdiction 
to  determine  the  claims  of  American  citizens  for  alleged  spoliations 
committed  by  the  French  prior  to  the  1st  day  of  July,  1801. 

The  nearest  approach  that  the  court  has  made  to  the  subject  of  the 
right  of  search  is  in  the  case  of  the  Xancy  (27  C.  Lis.  99).  In 
that  case  the  ship  sailed  from  Baltimore  in  1797;  was  captured  by  an 
English  ship  and  sent  to  St.  Nicolas  Mole,  and  there  the  master  was 
ordered  not  to  depart  without  a  convoy.  She  sailed  under  the  escort 
of  a  privateer  for  Jerome  and  retunied  to  the  Mole  under  escort. 
On  the  return  voyage  the  Xavcy  was  captured  by  a  French  privateer. 
It  is  said  in  that  case  that  "the  question  whether  a  neutral  vessel  laden 
with  neutral  cargo  is  liable  to  condemnation  if  captured  under  enemy 
convoy  has  never  been  directly  (letcmiined:  liut  on  a  review  of  the 
cases  and  elementary  writers  it  is  now  held  that  if  captured  when 
actually  and  voluntarily  under  the  protection  of  an  enemv,  she  is 
liable."  Sailinfj  under  the  convoy  of  an  enemy  is  the  exercise  of  the 
same  power  which  is  brought  into  requisition  on  the  part  of  a  neutral 
vessel  when  it  resists  the  right  of  search  by  actual  force. 

If  sailing  under  a  convoy  of  an  enemy  of  tiie  bellij4erent  is  a  just 
ground  for  seizure  and  condemnation,  it  mtist  follow  that  resisting 
the  exercise  of  search,  as  it  was  in  this  case,  involves  as  serious  con- 
sequences to  the  neutral  vessel  as  where  the  right  was  denied  bv  the 
presence  and  use  of  a  convoy. 

It  is  not  necessary  to  multiply  authorities  to  establish  the  ight  of 
search.  It  is  said  by  Chancellor  Kent  ( 1  Kent's  Commentaries,  p.  155) 
that  "in  order  to  enforce  the  rights  of  belligerent  nations  against  the 
delinquencies  of  neutrals,  and  to  ascertain  the  rial  as  well  as  the 
.isMinud  character  of  all  vessels  on  the  high  seas,  the  law  of  nations 
;irni<  them  with  the  practical  power  of  visitation  and  'iMnli.  The 
d'lty  of  self-preservation  gives  to  belligerent  nations  this  right.  It  is 
founded  tqion  necessity,  and  is  strictly  an. I  exclusively  a  war  right, 
and  does  not  rightfully  exist  in  time  of  per\.-e.  nnlos^  cntindcd  bv 
treaty.  .\I1  writers  upon  the  law  of  nations,  ;inil  the  liii^hc<t  author- 
ities, acknowledge  the  right  in  time  of  war  a-  rovting  on  soinid  prin- 
cipJis  of  pitl)lic  iuri-prndence  and  upon  the  institutes  and  practice  of 
all  great  maritime  powers,"     It  i<  said  by  the  <\mr  nnthoiitv,  pau'e 


420 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


154:  "The  whole  doctrine  was  ably  discussed  in  the  English  high 
court  of  admiralty  in  the  case  of  the  Maria,  and  it  was  adjudged  tiiat 
the  right  was  incontestable,  and  that  a  neutral  sovereign  could  not, 
by  the  interposition  of  force,  vary  that  right." 

In  that  case  it  is  said  by  Sir  William  Scott,  in  stating  the  prin- 
ciples of  international  law  upon  the  subject  of  search  and  of  the 
right  of  a  belligerent  to  search  neutral  vessels  engaged  in  commerce 
on  the  high  seas,  "that  the  right  of  visiting  and  searching  merchant 
ships  upon  the  high  seas,  whatever  be  the  ships,  whatever  be  the  cargo, 
whatever  be  the  destination,  is  an  incontestable  right  of  lawfully 
commissioned  cruisers  of  a  belligerent  nation.  I  say,  be  the  ships, 
the  cargoes,  and  destinations  what  they  may,  because  till  they  are 
visited  and  searched  it  does  not  appear  what  the  ships,  the  cargo,  or 
the  destinations  are,  and  it  is  for  the  purpose  of  ascertaining  these 
points  that  the  necessit\-  of  this  right  of  search  exists." 

Chancellor  Kent,  page  155,  in  further  elaboration  of  the  doctrine  of 
the  right  of  search,  states  the  circumstances  which  might  constitute 
an  exception  to  that  general  rule,  which  makes  it  the  duty  of  the 
neutral  to  subject  himself  to  the  jurisdiction  of  the  belligerent  in  the 
exercise  of  the  right  of  search.    He  says : 

There  may  be  cases  in  which  the  master  of  a  neutral  ship  may 
he  authorized  by  the  natural  right  of  self-preservation  to  defend 
himself  against  extreme  violence  threatened  by  a  cruiser  prnsslv 
abnsinp  his  commission :  but  except  in  extreme  cases  a  merrh.mt 
vessel  has  no  right  to  say  for  itself,  and  an  armed  vessel  has  no 
right  to  sav  for  it,  that  it  will  not  submit  to  visitation  and  search 
or  be  carried   into  a  proximate  port   for  judicial   inqnirv 

The  circumstances  of  this  capture  do  not  indicate  that  the  condition 
cited  by  Oiancellor  Kent  (^ which  may  be  regarded  as  an  exception  to 
the  general  rule)  existed  in  this  case.  While  there  might  have  heen 
in  the  mind-  of  the  crew  of  the  neutral  vessel  grave  apprehensions  of 
ultimate  condemnation,  even  with  reference  to  the  legitimnte  defenses. 
that  condition  of  apprehension  upon  the  part  nf  the  resisting  ncntral 
did  not  justify  him  in  denying  the  right  of  search  to  the  lieltigcrpnt 
The  circumstances  of  this  case  disclose  a  most  vigorous  ass.inlt  nm! 
defense,  there  being  twentv-four  men  killed  and  thirty-six  wminletl 
during  the  encounter  between  the  respective  vessels.  This  w.is  nctnal 
reM'stance.  and  was  onlv  overcome  hv  the  most  determined  effort  upon 
f'r  part  of  the  capturing  vessel. 


THE  SHIP  ROSE 


421 


The  right  of  search  is  so  sacred  in  the  view  of  international  law  that 
it  IS  protected  by  enforcing  the  consequences  of  resistance  where  no 
actual  resistance  is  made.  As  in  the  case  of  a  convoy,  it  has  been 
held  by  this  court  in  the  case  of  the  Xancy  (27  C.  Cls.  99)  that 
the  presence  of  a  convoy  is  constructive  resistance  and  a  denial  of  the 
right  of  search,  which  authorizes  seizure  and  consequent  condemna- 
tion. 

It  is  most  strenuously  and  ably  argued  by  counsel  that  at  the  date 
of  capture  there  was  in  existence  the  statute  of  June  25,  1798,  entitled 
"An  Act  to  authorize  the  defense  of  merchant  vessels  of  the  United 
States  against  French  depredations"  (1  Stat.  L.  572),  and  that  bv 
virtue  of  the  provisions  of  that  act  the  commander  and  crew  of  a 
vessel  had  a  right  to  resist  by  all  means  in  their  power  an  attempt 
upon  the  part  of  a  French  commander  and  crew  to  search  the  Amer- 
ican vessel.    It  is  provided  in  that  statute— 

TT^l'^^c!?^  commander  and  crew  of  any  merchant  vessel  of  the 
United  States,  owned  wholly  by  a  citizen  or  citizens  thereof,  may 
oppose  and  defend  against  any  search,  restraint,  or  seizure  which 
shall  be  attempted  upon  such  vessel  or  upon  any  other  vessel 
owned,  as  aforesaid,  by  the  commander  or  crew  of  any  armed 
vessel  sailing  under  French  colors,  or  acting  or  pretending  to  act 
by  or  under  the  authority  of  the  French  Republic :  and  may  repel 
by  force  any  assault  or  hostility  which  shall  be  made  or  committed 
on  the  part  of  such  French  or  pretended  French  vessel  pursuing 
such  attempt,  and  may  subdue  and  capture  the  same,  and  may  also 
retake  any  vessel  owned  as  aforesaid  which  may  have  been  cap- 
tured by  any  vessel  sailing  jnder  French  colors,  or  acting  or  pre- 
tending to  act  by  or  under  authority  from  the  French  Republic. 

Whatever  may  be  said  as  to  the  condition  or  status  of  the  ieg.il 
rights  and  obligations  of  the  French  and  American  Governments  before 
the  act  of  July  9,  1798  , 1  Stat.  T.  578).  it  must  be  assumed  that  after 
that  period  the  principles  and  rules  of  international  law  determined  and 
controlled  the  parties  with  reference  to  their  rights  on  the  high  seas. 

It  is  said,  in  the  case  of  the  Xattcy  (supra),  "it  has  been  tirped  that 
the  statute  of  the  United  Stater,  authorizes  resistance  hv  nnr  m.Tchant- 
mcn  to  French  visitation  and  search,  to  which  there  is  tl.'>  m„i„1,.  an- 
swer that  no  single  State  can  change  the  law  of  nations  i,v  its  muni- 
cipal  regulations." 

The  contention  of  claimants'  counsel  with  reference  to  the  rights 
is'uarantecl  to  American  merchantmen  under  and  by  virtue  of  the  pro- 


422 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


visions  of  the  act  of  1798  is  fully  answered  by  the  decision  of  this 
court  in  the  above  case.  If,  therefore,  at  the  time  of  this  seizure  there 
was  any  conflict  between  the  municipal  law  of  the  United  States,  as 
exemplified  in  the  statute,  and  the  well-recognized  principles  of  inter- 
national law,  the  latter  must  prevail  in  the  determination  of  the  rights 
of  the  parties. 

By  the  provisions  of  the  act  giving  this  court  jurisdiction  to  ascer- 
tain the  claims  of  American  citizens  for  spoliations  committed  by  the 
French  prior  to  the  31st  of  July,  1801,  it  is,  in  substance,  provided  that 
the  validity  of  said  claims  shall  be  determined  according  to  the  rules 
of  law,  municipal  and  international,  and  the  treaties  of  the  United 
States  applicable  to  the  same.  In  order  to  perform  ihe  duties  con- 
sistent with  the  requirements  of  the  statute,  the  court  must  give  each 
department  of  the  law  full  recognitioti  .nd  force  when  properly  ap 
plicable  to  the  facts  and  circumstances  of  the  controversy  involved  in 
the  litigation. 

The  rights  of  the  claimant  are  to  be  measured  by  the  unlawful  act- 
of  France,  and  unless  a  wrong  exists  under  the  rules  of  international 
law,  no  liability  can  attach  to  the  United  States ;  because,  by  the  treaty 
of  1800,  it  was  only  the  claims  growing  out  of  the  wrongful  act  of 
France  for  which  the  United  States  had  a  diplomatic  claim  and  which 
were  assumed  to  be  paid  to  the  citizen  whose  individual  right  was 
violated  in  that  wrong. 

This  court  in  making  the  investigation  contemplated  by  the  act  of 
our  jurisdiction  is  sitting  in  the  character  of  an  internatinnal  trilninal. 
to  determine  the  diplomatic  rights  of  the  United  States  as  they  existed 
against  France  prior  to  the  ratification  of  the  treaty  of  September 
30,  1800. 

The  municipal  law  in  the  absence  of  a  treaty  must  be  subordinated 
to  international  law  when  they  come  in  antagonism,  as  that  is  the  law 
common  to  both  parties. 

Where  the  qu'jstion  is  not  exclusively  within  the  domain  of  inter- 
national law  then  the  municipal  law  may  be  invoked  to  deteniiine  the 
proper  solution  of  the  question.  The  rules  of  propertv  by  which  the 
citizen  owned  the  subject-matter  of  the  seizure  and  condemnation  may 
be  properly  applied  in  ascertainment  of  his  rights,  and  so  mav  ntanv 
questions  of  the  law  nf  evidence  be  decided  in  accordance  with  the 
mtmicipal  law  of  the  party  whose  rights  have  been  violated,  roncre-s. 
in  the  enactment  of  the  law  of  our  jurisdiction,  must  be  presumed  as 


THE  SHIP  ROSE 


423 


having  recognized  many  of  the  principles  of  municipal  law  incident 
to  our  forms  of  judicial  procedure  and  determination. 

It  has  been  argued  that  the  belligerent,  in  making  the  attack  on  the 
vessel  of  the  claimant,  was  not  in  the  exercise  of  the  legal  right  of 
search  as  incident  to  him  as  a  belligerent,  but  that  it  was  an  assault, 
the  object  and  purpose  of  which  was  the  seizure  and  condemnation 
without  reference  to  the  fact  or  condition  of  being  a  neutral  vessel  of 
the  United  States  engaged  in  the  peaceful  and  lawful  commerce  of 
the  sea ;  that  the  condition  existing  between  the  two  governments  and 
peoples  was  such  that  all  respect  of  neutral  rights  had  ceased,  and 
that  force,  fraud,  and  violence  prevailed,  and  in  that  connection  much 
is  said  as  to  the  right  of  self-defense. 

The  claimants  are  treading  on  very  dangerous  ground  when  they 
urge  the  higher  law  of  self-preservation.  Self-defense  is  founded  on 
the  theory  that  it  is  the  only  remedy,  and  that,  being  the  only  remedy, 
it  presupposes  the  absence  of  all  law  protecting  the  rights  of  him  who 
asserts  the  prerogative  of  self-defense.  If  the  right  of  self-defense 
prevailed  to  the  extent  of  rcpellin;:  force  by  force,  and  was  incident  to 
the  crew  of  the  ship  captured,  then  all  other  law  was  silent  and  war 
prevailed,  which  condition  would  be  most  disastrous  to  the  case  of  the 
claimants. 

As  we  have  quoted  in  another  case,  decided  at  the  present  term  of 
court,  from  the  opinion  delivered  hy  Sir  William  Scott  in  the  case  of 
the  Maria,  in  1  C.  Rob.  340,  so  we  quote  upon  the  subject  of  the  right 
of  self-defense  in  this  case : 


How  stands  it  by  the  general  law  ?  I  do  not  say  that  cases  mav 
not  occur  m  which  a  ship  mav  be  authorized  by  the  n.itural  rights 
of  self-preservation  to  defend  itself  against"  extreme  violence 
threatened  by  a  cniiser  grossly  abusing  his  commission :  hut  where 
the  utmost  mjury  threatened  is  the  being  carried  in  for  inquiry 
into  the  nearest  port,  subject  to  a  full  responsibility  in  costs  and 
damages,  if  this  is  done  vexatiously  and  without  just  cause  a  mer- 
chant vessel  has  not  a  right  to  say  for  itself  fanrl  an  armed  vessel 
has  not  a  nf:ht  to  say  for  it),  "I  will  submit  to  no  such  in(|uirv. 
•lilt  I  will  take  the  law  into  my  own  hands  l.\-  force."  WTiat  is  to 
be  the  issue,  if  each  neutral  ves'-r!  has  a  right  to  judge  for  itself 
in  the  first  instance  whether  it  is  rightly  detained,  and  to  act  upon 
that  judgment  to  the  extent  of  using  force'  Surely  nothing  but 
hattle  and  bloodshed,  as  often  as  there  is  .invthing  like  an  equality 
of  force  or  an  e(|uality  of  spirit. 


■n 


424 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


For  the  reasons  above  stated  the  court  decides,  as  a  conclusion  of 
law,  that  the  seizure  and  condemnation  were  lawful,  and  that  the  own- 
ers and  insurers  had  no  valid  claim  of  indemnity  therefor  upon  the 
French  Government  prior  to  the  ratification  of  the  convention  between 
the  United  States  and  the  French  Republic,  concluded  on  the  30th  day 
of  September,  1800,  and  that  the  claims  were  not  relinquished  to 
France  by  the  Government  of  the  United  States  by  said  treaty  in  part 
consideration  of  the  relinquishment  of  certain  national  claims  of 
France  against  the  United  States,  and  that  the  claimants  are  not 
entitled  to  recover  from  the  United  States. 

The  facts  in  detail,  with  a  copy  of  this  opinion,  will  be  certified  to 
Congress  in  accordance  with  the  statute. 


The  Schooner  JANE^  [and  '3ther  Cases] 

[French  Spoliations,  848,  5446,  5455.     Decided  December  2,  1901] 

On  the  Proofs 

The  Jane,  being  on  the  high  seas,  descries  a  sail,  which  immediately  gives  chsse. 
The  Jane  makes  alt  sail  to  get  away,  but  the  other  vessel  comes  up  and 
fires  a  gun  at  her,  when  it  is  discovered  that  she  is  a  cruiser.  The  Jan,- 
immediately  heaves  to:  the  cruiser  hre?  another  gxin  with  ball,  and  also 
musketry.  The  Jane  returns  the  fire  with  one  gun.  The  cruiser  con- 
tinues to  fire  and  the  Jane  hauls  down  her  colors.  The  French  prize  court 
condemns  the  vessel  on  other  grounds  than  that  of  resistance  to  search. 
I.  Tlie  visitation  and  search  of  neutral  vessels  at  sea  is  a  belliRerent  riylit. 
11.  It  was  in  1799  an  undisputed  rule  of  international  law  that  dclituratv  :iii.i 
continued  resistance  to  search  on  the  part  of  a  neutral  to  a  lawful  cmi>cr 
should  be  followed  by  the  legal  consequence  of  confiscation. 

III.  The  object  of  search  is  to  get  evidence  of  the  fact  of  neutrality  nf  v.mI 

and  cargo. 

IV.  The  Act  of  July  9,  irgS'^  ( 1  Stat.  L.  578),  which  authorized  merchant  vessels 

to  carry  arms  for  protection,  could  not  change  the  rule  of   inteniatioial 
law  which  gave  a  belligerent  a  right  of  search. 
V.  A  court  can  not  diflFerentiate  degrees  of  resistence  which  will  render  a  vessel 

liable  or  not  liable  to  condemnation  for  resisting  search. 
VI.  Where  an  American  vessel  attempted  flight  from  an  unknown  v,s~,l,  but 
.in  discovering  that  she  was  a  French  cruiser,  hove  to,  and  after  Leins  llicn 
tired  into  with  ball  and  musketry  returned  the  fire,   it  was   rosl>l.iiice  to 
search. 


'  Court  of  Claims  Reports,  vnl.  .^7,  pat"'  24 


.M</-' 


(•.■;. 


THE  SCHOONER  JANE 


425 


The  Reporter's  statement  of  the  case : 

The  following  are  the  facts  of  the  case  as  found  by  the  court  • 

I.  The  schooner  Jane,  Peter  Sorensen,  master,  sailed  from  Balti- 
more, Md..  on  the  15th  day  of  July,  1799,  bound  for  Curagao 

While  peacefully  pursuing  her  said  voyage,  on  the  27th  day  of  July 
1799.  she  was  captured  on  the  high  seas  by  the  French  privateer 
Alliance  Cm^yn  Dupuy,  armed  with  twelve  guns,  and  taken  to  Porto 
Rico  where  both  vessel  and  cargo  were  condemned  by  the  decree  of 
the  French  pnze  tribunal  sitting  at  Bass^Terre,  Guadeloupe,  on  the 
13th  day  of  September.  1799.  whereby  both  vessel  and  cargo  became 
a  total  loss  to  the  owners. 

The  grounds  of  condemnation,  as  set  forth  in  the  decree  of  con- 
demnation, are  (1)  that  said  schooner  had  a  letter  of  marque-  (2) 
that  sa.d  vessel  had  no  role  d'equipage;  (3)  that  one  of  the  invoices 
shipped  on  board,  proved  to  be  two  trunks  of  English  ginghams 

The  facts  as  to  the  capture  of  the  Jane  are  set  forth  in  the  protest 
of  the  master,  which  is  as  follows: 

In  the  city  of  St.  John,  of  Puerto  Rico,  on  ti^e  27th  luly  1799 
at  abt  4  p.m.,  appeared  in  my  office  Peter  Sorensen.  nia^tV^' 
the  sch  Jane  and  Jeffrey  Dulano.  mate,  and  said  that  having 
sailed  fm  Baltimore  on  the  l.nh  mst..  Ix^und  to  Curasao  beS 

and  other  articles,  they  proceeded  without  accident  until  the  27tl 
of  said  month,  when  they  made  this  is',1  of  P'to  Rico,  bcarin'^ 
SE.  by  S.  distant  6  leagues,  at  break  of  day.  and  running  before 
the  wind  to  leeward  of  ,M  is'd.  at  9  a.m..  thev  descrie  „  .ai' 
to  windvvard,  which  in.mc.Iiafely  gave  chace  to  us.  while  we  made 

fired  a  gun  at  us,  when  we  discovered  to  he  a  cruizer,  and  ir.ime 

musSti,°''t  "^'  "'^1  ''^'  ^'"^  """"^"^  &""  ^■''''  ball  and  some 
musketry  at  us,  which  we  returned  with  one  gun.  and  the  ori- 

vateer  continuing  to  fire  her  great  guns  and  small  arms,  w'h 
damaged  our  sails,  we  were  obliged,  for  the  safety  of  our  live- 
to  haul  down  our  colors.  Immediatelv  a  prize-master  and  12  men' 
were  .sent  on  board  the  schooner,  and  we  were  carried  on  bo.ir,' 
the  Pr'vateer  w.th  all  the  ship's  paper,  which  we  found  she  wa. 
called  the  Alhance,  Capt.  Dupuy.  mounting  12  guns,  w'h  a  crew 
ot  yy  men.     And  the  captain,  after  exami  linij  the  paper,    or- 

fhr?7M   ''T  'xu^'^u^*^;  ''''^'■'-'  ''^  •-'^'■ived  on  the  same  day. 

he  2/th  inst.     They  therefor  protest,  etc.,  etc.  against  I'citi.en 

Dupuy.  his  owner,  and  all  others  whom  it  mav  concern    for  all 


426  JUDGMENTr  OF  THE  COURT  OF  CLAIMS 

damages,  etc.,  etc.,  to  reclaim  the  same  when  and  where  oppor- 
tunity may  serve. 

II.  The  Jane  was  a  duly  registered  vessel  of  the  United  States,  of 
90  69/95  tons  burden;  was  built  at  Norfolk,  Va.,  in  the  year  179<S, 
and  was  owned  by  David  Stewart,  David  C.  Stewart,  and  John 
Stewart,  composing  the  firm  of  David  Stewart  &  Sons,  merchants  of 
Baltimore  and  citizens  of  the  United  States. 

III.  The  cargo  of  the  Jane  consisted  of  brandy,  raisins,  and  flour, 
and  was  owned  by  said  David  Stewart  &  Sons,  the  owners  of  the 
vessel.  Edward  Courtney  had  also  on  board  an  invoice  of  dry  goods, 
for  which  no  claim  is  made. 

IV.  The  losses  by  reason  of  the  capture  and  condemnation  of  the 
Jane  are  as  follows : 


Value  of   the   vessel    $3.6.i0.00 

The  freight  earnings    1 ,510.00 

Cargo  o«  ned  by  David  Stewart  &  Sons 4,800.00 

Cargo  owned  by  Edward  Courtney    1,214.31 

Premium  on  insurance  paid  by  David  Stewart  &  Sons  on 

vessel    625.00 

Premium  of  insurance  paid  by  David  Stewart  &  Sons  on 

cargo    625.0(1 

Premium  of  insurance  paid  by  Edward  Courtney  on  cargo  125.00 

Amounting  in  all  to    $12,589..M 


V.  On  September  2,  1799,  said  David  Stewart  &  Sons  insured  the 
vessel  and  cargo  with  the  Marine  Insurance  Office,  of  Baltimore,  in 
the  sum  of  SIO.OOO,  being  S5,000  on  the  vessel  and  $5,000  on  the 
cargo,  paying  therefor  a  premium  of  12'/2  per  cent,  or  $1,2.50. 

Thereafter  said  insurance  office  paid  to  said  David  Stewart  &  Smii 
the  sum  of  $10,000,  as  and  for  a  total  loss  thereon. 

On  August  23,  1799,  Edward  Courtney  insured  his  interest  in  sai-l 
cargo  with  the  Marine  Insurance  OfKce,  of  Baltimore,  in  the  sum  of 
$1,000,  paying  'Jierefor  a  premium  of   12 '4  per  cent,  or  $125. 

Thereafter  said  insurance  office  paid  to  said  Courtney  the  sum  of 
$1,000,  as  and  for  a  total  lo>s  thereon. 

VI.  The  losses  to  the  different  claimants  by  reason  of  said  capture 
and  condemnation  were  as  follows : 


THE  SCHOONER  JANE  427 

David  Stewart  &  Sons: 

The  value  of  the  vessel  $3,630.00 

The  freight  earnings   1  5IO.00 

1  he  value  of  their  cargo   4  ggQ  00 

Premiums  of  insurance  paid ..  1  25000 

,       T°**^    ;••• $11,250.00 

Less   insurance   received    10  qoO  00 

Leaving  a  net  lo'^s  to  them  of $1,250.00 

VIL  Ferdinand  C.  Latrobe  is  the  receiver  duly  appointed  by  the  cir- 
cuit court  of  Baltimore  City.  Md..  of  the  estates  of  Aquilla  Brown, 
John  Sherlock,  and  George  Grundy,  representing  all  the  partners  un- 
derwriting in  the  Marine  Insurance  Office. 

VIIL  The  said  administrator  and  receiver  have  been  duly  ap- 
pointed and  represent  the  parties  interested  in  the  estate  of  the  said 
dece<Ients. 

Mr.  W.  T.  S.  Curtis  for  the  claimants.    Mr.  Frank  P.  Clark  was  on 
the  brief. 
Mr.  Charles  IV.  Russell  for  the  defendants. 

Howry,  J.,  delivered  the  opinion  of  the  court : 

The  schooner  Jane.  Sorensen,  master,  sailed  from  Baltimore  Md 
on  July  15,  1799,  bound  for  Qiragao.  While  peacefully  pursuing  her 
voyage  July  27,  1799,  the  schooner  was  captured  on  the  high  seas  by 
the  French  privateer  AUianee  and  taken  to  Porto  Rico,  where  both 
vessel  and  cargo  were  condemned  by  decree  of  the  French  prize  tri- 
bunal sitting  at  Basse-Terre,  Guadeloupe,  on  September  13,  1799. 
The  vessel  and  cargo  became  a  total  loss  to  the  owners  by  virtue  of 
the  condemnation.  The  srrounds  set  forth  in  the  decree  of  condemna- 
tion were  that  the  schooner  had  a  letter  of  marque,  that  she  was  with- 
out any  role  d'equipage,  and  that  one  of  the  invoices  .'ihipped  on  board 
proved  to  be  two  trunks  of  English  ginghams. 

The  master's  protest  details  the  capture  of  his  schooner  in  the  fol- 
lowing langfuage: 


They  descried  a  sail  to  windward,  which  immediately  gave 
chase  to  us.  while  we  made  all  sail  to  get  awav  from  her;  but 
she  soon  came  up  with  and  fired  a  gun  at  us.  when  we  discovered 


428  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

her  to  be  a  cruiser,  and  immediately  hove  to,  while  she  (the 
cruiser)  fired  another  gun  with  ball  and  some  musketry  at  us, 
which  we  returned  with  one  gun,  and  the  privateer  continuing 
to  fire  her  great  guns  and  small  arms,  which  damaged  our  sails, 
we  were  obliged,  for  the  safety  of  our  lives,  to  haul  down  our 
colors. 


It  is  not  necessary,  in  the  view  of  the  court,  to  notice  the  grounds 
of  decision  by  the  prize  tribunal,  except  as  it  relates  to  the  matter  of 
search. 

The  right  of  visitation  and  search  of  neutral  vessels  at  sea  is  a 
belligerent  right,  essential  to  the  exercise  of  the  right  of  capturing 
enemy's  property,  contraband  of  war,  and  vessels  committing  a  breach 
of  blockade.  It  is  essential,  in  order  to  determine  whether  the  ships 
themselves  are  neutral  and  documented  as  such,  according  to  the  law 
of  nations  and  treaties,  even  if  the  right  of  capturing  enemy's  prop- 
erty be  ever  so  strictly  limited. 

The  practice  of  maritime  captures  could  not  exist  without  the  privi- 
lege, and  accordingly  the  leading  sea  powers  of  the  world  framed  their 
regulations  in  assertion  of  the  right.  It  was  the  undisputed  rule  of 
the  British  Admiralty,  according  to  an  order  of  the  council  ( 166t,  art. 
12,  and  affirmed  by  proclamation  in  1672)  which  directed  that  when 
any  ship  met  withal  by  the  royal  navy  shall  fight  or  make  resistance 
the  ship  and  goorls  should  be  adjudged  lawful  prize.  The  French  had 
previously  (1681)  set  the  example  hy  a  declaration  in  their  celebrated 
ordinance  of  marine  that  every  vessel  should  be  good  prize  in  case 
of  resistance  and  combat.  Resistance  alone  under  this  ordinance  was 
deemed  sufficient  by  \'alin  in  his  Commentary  (81),  but  the  Spanish 
ordinance  of  1718.  which,  the  authorities  say.  was  copied  from  the 
French  ordinance,  expressed  it  in  the  disjunctive,  "in  case  of  re- 
sistance nr  combat."     (Dana's  Wheat.  Inter.  I...  8th  ed.,  sec.  .=^26.) 

Three  principles  were  established  in  the  high  court  of  admiraltv  in 
the  memorable  case  of  The  Maria  (1  C.  Rob.  .340").  These  were  tliat 
the  right  of  visiting  and  searching  merchant  ships  on  the  hicjh  seas 
was  an  incontestable  right  of  the  lawfully  mentioned  cruiser;  of  .i 
belligerent  nation,  that  the  authority  of  a  neutral  sovereign  being  in- 
terposed could  not  legally  vary  tiie  right  of  a  lawfully  mentioned  bel- 
ligerent cruiser,  and  that  the  penalty  for  the  violent  contravention  of 
the  belligerent  right  was  confiscation  of  the  property  so  withheld  from 
visitatiiM)  an.l  search.     In  that  decision,  delivered  in   Tune.  1799,  the 


THE  SCHOONER  JANE  ^29 

v-cssd  was  condemned  fur  sailing  under  convoy  of  an  anned  ship  for 
the  purpose  of  resisting  visitation  and  search.    The  international  rule 

summed  up  by  the  judgment  in  that  case,  and  decisions  since  then 
have  mamly  followed  m  approval  of  the  reasons  there  given  for  the 
judgment  of  the  court.  So  that  it  has  come  to  be  accepted  as  a  sett  ed 
..le  (stated  by  Sir  William  Scott,  upon  the  authority' of  Vat  hi 
.nst.tut.ons  of  h.s  own  and  other  maritime  countriS)  that  the  de^ 
hberate  and  continued  resistance  of  search  on  the  par^  of  a  neutrll 
vessel  to  a  lawful  cruiser  will  always  be  followed  by  the  legal  cone 
quence  of  confiscation.  ^ 

The  detention  of  a  neutral  vessel  is  to  ascertain,  not  by  the  flag 
merely   wh.ch  may  be  fraudulently  assumed,  but  by  the  Lum«,t! 
themselves  on  board,  whether  she  is  really  neutral     The  objeTt  o 
searchmg  ostens.bIe  neutrals  is  to  get  evidence  as  to  the  fact  of  neu 
ral.ty  and  .f  the  cargo  be  not  enemy's  property ;  or  if  neutral,  whether 
hey  are  carrymg  contraband ;  or  whether  the  vessels  are  in  the  serlic" 
of  the  enemy  m  the  way  of  carrying  military  persons  or  dispatches  or 
>a.hng  ,n  prosecution  of  an  intent  to  break  blockade.    It  is  sometimes 
necessary  to  examine  papers  and  inspect  the  vessels  as  well  a  Th^ 
cargc^s  and  persons  on  board,  and  the  question  as  to  the  propriety 
of  the  capture  of  each  vessel  is  a  mixed  question  of  law  and  fact 

anit  I?  /  ,  .  '""'"^  '"  '^"  "^^'  °^  ^""'''^  ^'^^"Sh  of  lawful  force, 
and  a  lawful  force  can  not  be  lawfully  resisted."  But  the  Jane  un 
dertook  to  resist.  Before  sailing  she  was  provided  with  a  com- 
mission.  Pr^umptively  she  bore  this  commission  to  subdue  and 
capture  French  vessels  under  the  act  of  July  9.  1708  1  Stat  I  ^"8 
(which  was  enacted  to  further  protect  the  commerce  of\he  United 
,     r.  '  '^"  '"'*  ''^"^  "°  international  force.    The  powers  not 

ony  did  not  recognize  it  as  possessing  any  significance,  hut  this  court 
as  since  declared  that  no  single  State  could  change  the  law  of  nation^ 
by  Its  municipal  regulations.  ,  Th^  .\a„cx,  27  C.  Cis  99  )  As  the 
niles  of  international  law  determine  and  control  parties  with  refer- 
ence to  their  rights  on  the  high  seas  iThe  Ship  Rose.  36  C  Cls 
m),  ^'t  follows  that  the  right  given  by  the  domestic  statute  to  op^ 
pose  and  defend  against  any  search,  restraint,  or  seizure  gave  way 

rH;;rsrr  ™'^- ''-  -''''  °^ '-'--  --  -^^"--^^  - 

Whatever  the  purpose  of  the  Ja,w  in  bearing  a  commission,  the  fact 


430 


JUDGMENTS  OF  THE  COURT  OI    JLAIMS 


remains  she  did  resist,  lier  master  was  preventetl  from  successfully 
acting  upon  his  instruction^  only  by  an  irresistible  force.  He  did  the 
best  he  could  to  resist  by  the  fire  of  one  gun  and  only  struck  his  colors 
when  there  was  no  help  for  it.  Under  these  circumstances  his  actj 
were  acts  of  resistance  and  of  combat,  as  far  as  he  could  resist  and 
fight. 

The  attempt  to  avoid  search  failed  because  of  the  superior  speed 
of  the  cruiser,  which  fired  a  gun  at  the  fleeing  vessel.  The  fire  ui 
that  g;un  was  intended  to  cause  detention.  The  master  of  the  vessel  in 
flight  hove  to  only  when  the  cruiser  came  up ;  the  latter  firing  anotlier 
gun  with  ball  and  musketry.  It  does  not  appear  that  any  dama^'c 
was  (lone  or  intended  to  be  done  by  the  second  fire  beyond  an  exer- 
cise of  the  force  necessary  on  the  part  of  the  cruiser  to  compel  obe- 
dience to  search.  The  June  returned  the  lire,  and  hauled  down  lie. 
colors,  not  from  choice,  but  necessity.  Can  it  be  doubted  from  liie 
master's  statement  that  this  case  would  not  have  arisen  had  the  nea- 
ter been  able  to  make  a  successful  fight? 

When,  in  the  determination  of  these  cases,  this  court  undertakes  tu 
dilYcrentiate  the  degrees  of  resistance  we  tread  upon  uncertain  ground. 
We  invade  the  right  of  the  belligerent  to  protect  itself  against  tlie 
possible  unlawful  acts  of  a  neutral,  and  this  can  not  be  safely  done 
without  running  counter  to  those  rules  which  every  nation  claims  for 
it>elf  to  protect  its  authority  and  power  against  those  seeking  to  ile- 
stroy  it  and  those  aiding  in  the  attempt. 

For  the  reasons  given  the  court  decides,  as  a  conclusion  of  law.  that 
the  seizure  was  lawful  and  that  the  owners  and  insurers  had  no  valid 
claim  of  indemnity  upon  the  French  Government  prior  to  the  ratifica- 
tion of  the  convention  between  the  United  States  and  the  Frencli  Re- 
public, concluded  on  the  .lOtli  day  of  September,  1830,  and  that  tlie 
claims  were  not  relinquished  to  France  by  the  Government  of  the 
United  States  by  said  treaty  in  part  consideration  of  the  reliiiqiii>l-- 
ment  of  certain  national  claims  of  France  against  the  United  State.-, 
and  that  the  claimants  ire  not  entitled  to  recover  from  the  United 
States. 

The  findings  of  fart,  with  a  copy  of  this  opinion,  will  be  certified 
to  Contjrcs<  in  accnrd.ance  v  ith  the  terms  of  the  statute. 


N'oTT,  Ch.  J.,  dissenting: 

In  1799,  as  at  the  present  time,  the  usage  of  the  sea  which  governed 


THE  SCHOONER  JA\E  43J 

the  actions  of  a  bei:.,e,.,n  cn..er  and  a  neutral  merchantman  was 

On  ..gluing  a  .trange  sail  a  neutral  merchantman  might,  and  ord. 
nanly  would,  avo.d  the  ..ranger  by  changing  her  course  .^"essart- 
and  crowdmg  sa,!.  It  wa.  then  incun,bent  upon  a  belligerent  cr^!r' 
-f  she  would  exerc.se  her  right  of  search.  I  make  chale  and  con 

In  ll«  words  of  Ih,  leaj.ng  naval  ,>ri«r  of  our  ■!„,«  ,Ca„,  Altr-i 
1.  Mahan.)  ,l,e  -n.o.n.l  is  bound  to  snbn.i.  ,„  „„  rig,„ '„';  '^^'^'J 
.!»,  ovenato,  b,„  ,s  in  ,k.  „i„  bonnd  ,o  facliuK  il."    0,°  1,.  sh„ 

and  >nU„„  ,o  .    U.,on  and  ."clf '  0:r^r;.;t„r;  ™  d^ ^a!" 
ing  l«r  colors.  „  b„a„„  ,l„  d„,,  „f  „„.  ,„,„,  „^  f„,„„d  a,.t'  °  n 

rt":' r ,,  ''r;r:;r'r;:.,;"  'T'  "-.--^  -'  ■■  ■- 
-..a  .0  ban,  do.„  b.rMa;;«:';j.';,:  X'rZn:;  :r 

tionality  and  her  neutrality.  ^"^  "**" 

In  the  present   case  all   of   tl,e>e  conditions   were  complied    wi.I, 
:l'e  Jane  d,d  display  her  colors  and  did  heave  to  to  aiai  '  e 
as  ^cu  as   she  discovered  that  the  pursuing  vessel   w^       p' 

...e  ,»cn,  da,  ..„„,d  be  .>,Ji7::,T:,.::^"'i^t;^ 

"1*  to  a  rnches.  b.r  breadrl,  19  /„,  .!  i„cb„,  ben  dcp.b  ,S    eef  ' 
■  d'l,  '  "■"""'-l>-  "■"  51  >""•:  IHT  crew  eonid  n^,      >,'„„: 

.-»;':.' "r.;i'r'4^-i," ■™^' " "  ™'« »'  ■-  --  - 

ReL',iv;:rr-"ip " """"  '""'"<' "  >=""■• » '■'■ '  '"-■  "f '» ."™. 


W5 


^  w.' flR''.',^,iii^^  ■:•  •i;>viv;:a4aii 


432 


'JDGMENTS  Gi"  THE  COURT  OF  CLAIMS 


merchantman  ind  raked  her  fore  and  aft.  To  suppose  that  against 
such  overwhelming  force  a  paltry  little  vessel  like  the  Jane  would 
heave  to,  lose  her  steerage  way,  and  then  resist  search  is  to  suppose 
that  her  master  and  crew  suddenly  went  mad. 

Probably  the  firing  of  the  shotted  gun  into  the  Jane  was  one  of 
those  casualties  which  are  classified  as  the  playing  with  edged  tooK 
by  children.  The  blunder  of  a  gunner,  a  misunderstanding  of  some 
order,  a  spark  falling  from  a  heated  firing  iron,  may  have  caused 
the  shot.  But,  nevertheless,  it  was  a  shot  fired,  not  at  this  mer- 
chantman, but  on  the  American  flag;  and  such  shots  continued  until 
the  schooner  hauled  down  her  colors,  as  enemies  surrender  in  time 
of  war.  France  owed  an  explanation  of  the  act  to  the  United  States, 
but  that  was  a  matter  which  belonged  and  still  belongs  entirely  to  the 
diplomatic  realm. 

On  the  22d  June,  1807,  a  British  admiral  undertook  to  apply  the 
British  doctrine  of  the  right  of  search  to  an  American  man-of-war, 
and  out  of  it  came  what  has  been  known  as  the  affair  of  the  Chesa- 
peake and  the  Leopard.  The  Chesapeake  had  jus.  i  the  navy-yard 
at  Washington,  and  her  armament  was  found  to  be  in  a  disgraceful 
condition.  For  twenty  minutes  the  Leopard  fired  into  her  wi  ut 
her  being  able  to  return  a  single  shot.  As  her  flag  was  coming  down, 
one  of  her  officers,  Lieutenant  .\llen,  seized  a  burning  ember  in  his 
ungloved  hand  and  fired  the  only  >hot  fired  at  the  Leopard.  (2 
Cooper  Xaval  History,  104.)  This  act  of  Lieutenant  Allen  was  sup- 
poseil  at  that  time  to  be  fur  the  honor  of  his  flag;  that  it  should  nat 
l>e  said  that  an  American  man-of-war  surrendered  without  firing  a 
»hot. 

I  do  not  know  that  a  sense  of  honor  required  the  master  of  ihia 
little  schooner  to  fire  his  tine  shot  hef«  re  he  hauled  down  his  flag. 
but  I  think  I  may  say  with  tolerable  certainty  that  no  case  cm  !« 
found  in  judicial  decisions,  or  in  elementary  writers,  or  in  diplomatic 
correspondence,  where  the  right  of  search,  even  as  defined  hy  the 
two  great  maritime  nations  of  the  earth  in  the  eighteenth  century, 
is  held  to  be  or  is  claimed  to  be  a  doctrine  so  sacred  as  to  obliterate 
the  natural  right  of  self-defense. 

It  remains  to  be  noted  that  (as  appears  from  the  proceedings  be- 
fore the  French  prize  court)  the  captain  of  the  Alliance  made  no 
citarjjc  of  rcsi^itancc  to  search  hy  his  prize;  that  the  tribunal  of  com- 
nic'cc  and  prizes  made  nti  i-otidemti.ition  upon  that  ground;  that  the 


THE  SHIP  JAMES  AND  WILLIAM  433 

Jane  was  condemned  because  she  had  on  board  two  trunks  of  English 
ginghams  and  her  piipers  did  not  conform  to  French  laws;  and  that 
it  was  not  so  much  a^  heard  of  that  the  vessel  resisted  search  until, 
more  than  one  hundred  years  after  the  event,  the  counsel  for  the 
United  States  first  formulated  that  defense.  In  the  most  of  these 
French  spoliation  cases  the  illegality  of  the  condemnation  was  in  the 
fact  that  the  French  prize  courts  condemned  vessels  under  French  laws 
instead  of  releasing  them  under  international  law.  In  this  case  the  il- 
legality of  the  seizure  was  supplemented  by  an  outrage  upon  the  neu- 
tral flag  which  the  vessel  carried. 

I  regret  that  I  must  dissent  from  the  majority  of  the  court,  but  I 
can  not  regard  that  outrage  as  something  which  can  render  an  illegal 
condemnation  legal. 


The  Ship  JAMES  AND  WILLIAM'  [.and  Other  Cases] 

[French  Spoliations,  1197.  1089,  ,W17.     Dtcided  March  3,  1902] 

On  the  Proofs 

The  James  and  William  sails  from  Norfolk  boiiii'l  for  London  in  January,  1798 
laden  with  tar  and  turpentine.  She  is  captured  and  condemned  bicau« 
the  treaty  1795  with  Great  Britain  declares  tar  and  turpentine  to  be  con- 
traband. 

I.  By  the  treaty  1778  witli  France  it  wa.s  declared  that  tar  and  turpentine 
"ihall  not  be  reputed  contraband"  Until  the  abrogation  of  the  treaty  by 
the  Act  of  July  7,  ,79s '  i\  Stat.  L.  578).  French  condemnation,  on  the 
ground  that  tar  and  turpentine  were  contraband  were  illegal. 
II.  The  treaty  1795  with  Great  Briuin  did  not  release  France  from  any  obliga- 
tion of  the  treaty  of  1778.  '        n 

"'  ^^'.  f^"  "'  *'"  '""■""*'  ^•"^'■""n«'"«  ahroRating  ,0  much  of  the  treaty 
of  1778  as  related  to  contraband  gotnls  on  neutral  vtsseh  justified  its  own 
cnjiier.  in  seumg  and  its  own  courts  in  condemuitrR  vessels,  btit  did  not 
abrogate  any  treaty  right  of  the  L'nited  States. 

IV.  The  "r**  mott-faiored  nation"  clause  in  treatios  relates  to  duties  and  rights 
and  benefits  m  the  port,  of  the  parties.  Provisions  which  declare  what 
*h-II  be  regarded  as  contraband  or  non-contraband,  relate  to  the  procedure 
o  the  two  nations  in  time  of  war.  and  are  not  affected  by  a  treaty  of 
cither  with  another  power.  ^ 

V.  Where  an  Americw,  vessel  carried  the  passport  or  sea  letter  prescribed  b* 
X'Se^'Ar^J^Xin  ''?k'^  "  ''•'  •  ^"'  -'"'  '-'  .hi'mldMrS 


'  Court  of  Oaims  Reports,  vol.  37.  page  .W 


■' -Sk/tu.  p.  65. 


434  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  Reporters'  statement  of  the  case: 

The  following  are  the  facts  of  the  case  as  found  by  the  court : 

I.  The  James  and  tVUliam  sailed  from  Norfolk,  Va.,  on  the  26th  of 
January,  1798,  bound  for  London.  On  the  22d  of  February,  she  was 
captured  on  the  high  seas  bv  the  French  privateer  President  Parker 
and  carried  into  the  port  of  Roscoff.  On  the  5th  of  March,  1798,  she 
was  condemned  by  the  French  tribunal  of  commerce  at  Morlaix.  The 
grounds  of  condemnation  set  forth  in  the  decree  were  that  the  tar 
and  turpentine  which  formed  the  chief  part  of  her  cargo  were  declared 
to  be  good  contraband  and  subject  to  seizure  by  the  treaty  between 
the  United  States  and  Great  Britain,  bearing  date  November  19,  1794, 
article  18,  and  that  the  ship's  papers  were  not  in  proper  form. 

Bui  it  likewise  appears  by  the  said  decree  that  there  was  on  board 
the  vessel  at  the  time  of  seizure  a  passport  from  the  President  of  tlie 
United  States  to  the  master  of  the  ship,  dated  the  20tli  of  Jamiar>, 
1798,  signed  "John  Adams,"  President,  by  Timothy  Pickerinp,  Secre- 
tary of  State,  such  as  was  provided  for  by  the  treaty  with  Fraike. 
February  6,  1778  (Public  Treaties,  p.  203.  Art.  XXV).  and  Iiki\M<e 
in  affidavit  made  by  the  master  of  the  ship,  showing  that  she  was  a 
vessel  of  the  United  States  and  that  no  citizen  or  subject  of  powt  r-; 
then  at  war  had  any  part  or  interest,  directly  or  indirectly,  therein, 

II  The  James  and  lyUliam  was  a  duly  registered  vessel  of  t!ie 
United  States ;  was  built  in  Virginia  in  1796.  of  209  tons  burden,  an.l 
was  owned  by  John  Proudfit  and  the  firm  of  David  Stewart  &  Sdns. 
citizens  of  the  United  States. 

IH.  The  cargo  of  the  Janus  and  U'illuim  con.sisted  of  1.878  l),irr.!> 
of  turpentine  and  96  barrels  of  tar,  the  [)roperty  nf  John  (.nvper  »l 
Co.,  citizens  of  the  L'nited  States,  and  of  a  case  nf  deer  hides  ami  17 
barrels  of  gentian,  for  which  no  claimant  has  appeared. 

IV^.  The  losses  by  reason  of  the  capture  and  condemnation  nf  the 
James  and  IVUliam  were  as  follows : 

The  value  of  the  vessel  was $  •),4n5O0 

The  freight  earnii.gs  of  the  voyage  were ^  .V.^OOOO 

The  value  of  the  cargo  l)elonging  to  Cowpcr  &  Co .^0J3fX) 

Amounting  in  all $I8.,'^2r"(l 

\'.  The  loss  sustained  by  John  Cowper  &  Co.  was  $5,922.00. 
\'I.  The  loss  sustained  by  John  Proudfit  was: 


THE  SHIP  JAMES  AND  WILLIAM  435 

One-half  the  value  of  the  vessel $4  702  SO 

One-half  freight  earnings 1  750  00 

Amounting  to $6,452.50 

VII.  The  loss  sustained  by  the  firm  of  David  Stewart  &  Sons  was: 

One-half  the  value  of  the  ve.ssel $4  792  50 

One-half  the  freight  earnings  of  voyage i . . .    1750  00 

Amounting  to $6,452.50 

VIII.  The  said  firm  of  John  Cowper  &  Co.  was  composed  of  John 
Cowper.  Josiah  Cowper,  William  Cowper,  and  Robert  Cowper.  of 
which  John  Cowper  was  the  surviving  partner. 

The  firm  of  David  Stewart  &  Sons  was  composed  of  David  Stewart. 
John  Stewart.  David  C.  Stewart,  and  William  P.  Stewart,  of  which 
said  William  P.  Stewart  was  the  surviving  partner. 

The  claimants  herein  have  produced  letters  of  administration  for 
the  estates  of  the  parties  for  whom  they  appear  and  have  otherwise 
proved  to  the  satisfaction  of  the  court  that  they  are  the  same  j)ersons 
who  suffered  loss  by  the  seizure  and  condemnation  of  the  James  and 
William,  as  set  forth  in  the  preceding  findings. 

Mr.  llilliam  li.  Curtis  and  Mr.  Frank  P.  Clark  for  tlu-  claimants. 
.\tr.  diaries  JV.  Russell  (with  whom  was  .'./r.  .hsistant  .-ittorncy- 
Gcneral  Pradt)  for  the  defendants. 

XoTT,  Ch.  J.,  delivered  the  opinion  of  the  court: 

The  vessel  in  this  case  sailed  from  Xorfolk  on  the  2U{h  of  January, 
1798.  bound  for  a  belligerent  port,  London,  laden  with  tar  and  tur- 
pentine. Tar  and  turpentine,  like  horses,  -belong  to  that  <lisp.itable 
class  of  mtrchandisc  which  m.iy  or  may  not  be  contraband,  .icoordinu 
to  the  circuin?»anccs  of  a  case."    ( Brig  l.ucy.  ?>7  C.  (Is.  •);, ) 

lU  the  treaty  with  France,  1778  n'ublic  Treaties,  p.  JIO.  Art. 
XX1\).  horses  were  declared  to  be  contraband,  and  tar  and  tt!r,K«n- 
tine.  it  uas  declared,  "shall  not  be  reputed  cnntrnband. "  Such  was 
the  law  iK-tween  France  and  the  I'nited  St.itcs  p.y  the  treafv  of  i7'H 
with  Great  Britain  (Public  Treaties,  p.  278.  .\rt.  'x\  Ilh,  ti.is  p..;icy 
was  m  part  reversed,  and  tar  and  turpentine  were  derhired  to  be  con- 


,^..  \''i    . 


436 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


■f 


tia'uaiid  and  "just  subjects  oi  confiscation  whenever  tliey  are  attempted 
to  be  carried  to  an  enemy.  ' 

The  James  and  lyUliam  was  captured  in  February  and  condemned 
in  .March,  1798,  on  the  ground  tliat  her  cargo  was  contraband;  tiiat 
is  to  say,  she  was  captured  befc^re  the  abrogation  of  tlie  treaty  with 
France,  but  after  the  ratification  of  the  treaty  with  Great  liritain. 
According  to  the  terms  of  the  two  treaties,  if  an  American  vessel  at 
that  time,  laden  with  tar  and  turpentine,  was  sailing  for  a  French  pen, 
a  British  prize  court  was  justified  in  condemning  the  cargo  as  con- 
traband. If  she  was  sailing  for  a  British  port,  a  French  prize  court 
was  bound,  according  to  the  letter  of  the  treaty,  to  pronounce  tiie 
cargo  non-contraband. 

Grounding  his  argument  upon  this  diversity,  the  counsel  for  the 
United  States  contends  that  the  treaty  with  Great  Britain  was,  in  tliis 
particular,  a  rescission  and  abandonment  of  the  treaty  with  France ;  or 
that  under  the  most- favored-nation  provision  of  the  treaty  (Art.  II) 
France  was  entitled  to  the  benefit  of  the  treaty  with  Great  Britain. 

The  counsel  for  the  claimants  contend  that  the  treaty  with  France 
was  still  in  force  and  that  this  provision  of  the  treaty  related  to  com- 
merce and  navigation,  and  not  to  any  matter  of  neutral  rights  in  time 
of  war. 

The  court  is  of  the  opinion  that  the  United  States  relinquislied  no 
obligation  to  France  by  their  treaty  with  Great  Brit-=n.  A  nation 
may  abrogate  a  treaty  as  it  may  make  a  treaty— on  its  own  motion, 
upon  its  own  responsibility.  There  is  no  international  forum  which 
can  decree  that  it  has  no  right  to  do  so.  What  follows  the  abrogation 
of  a  treaty  is  a  matter  between  the  two  nations.  It  may  »>e  follower! 
hy  an  interval  in  which  they  have  no  treaty  relations,  or  it  mnv  !  e 
followed  by  war.  But  a  nation  can  not  at  its  pleasure  abrogate  one 
article  of  a  treaty  and  leave  all  of  the  other  obligations  in  efToct.  hind- 
in?  the  other  power.  The  decree  of  the  French  Govemmmt  .ihm- 
cating  .o  much  of  the  treaty  of  1778  as  related  to  contrahnnd  goorU 
on  neutral  vessels  justifi-d  its  own  cruisers  in  seizing  vessels  ,ind  if^ 
fwn  pri7p  courts  in  condemning  them,  hut  without  notire  f,,  nr! 
ic<mir«cence  on  the  part  of  the  United  States  the  decree  ovl^  -  t 
ex  fr,.''rio  7-i,i:orr  evtend  to  the  treatv  rights  of  the  United  Stitr^  In 
Jnlv.  1708  (An  of  fufv  7.  1708.  1  Stat.  U.  ^7H).  tho  T'nitcl  Sfur^ 
ahrnrrat,.,!  the  fre.itv  in  tnto.  and  thereby  relieved  Francp  fron,  n'l 
oblismfions  under  it      Thio  conrt  in  the«e  spoliation  ca-^es  1m.  .nhvnv 


THE  SHIP  JAMES  AND  WILLIAM  437 

recognized  that  release  from  treaty  obligation,  and  has  given  to  France 
the  full  benefits,  whatever  they  may  have  been,  of  such  exemption. 

The  most-favored-nation  clause  of  the  treaty  of  1778  is  in  these 
words : 

f„Jii'"'  ^IT  '-■''"*''^"  l^i"?  and  the  United  States  en^aee  mu- 
tually not  to  grant  any  particular  favor  to  other  nations  fnl^esSct 
of  commerce  and  navigation  which  shall  nut  immeSel  Se 
common  to  the  other  party,  who  shall  enjoy  The  imeW 
freely,  ,f  the  concession  was  freely  made,  or  on^allowir^the  same 
compensation  if  the  concession  was  conditional 

It  is  well  known  that  such  provisions  in  a  treaty  relate  to  duties, 
nghts,  and  benefits  in  the  ports  of  either  ally,  and  it  has  been  so  said 
ot  th.s  provision  in  the  treaty  uf  1778.     ( Whartons  Int.  Law.  voi.  II 
sec.    48.)     Ihe  other  provisions  of  this  treaty  (Art.  XXIII)  related 
stnctly  to  the  procedure  between  the  two  nations  in  time  of  war.   What 
they  agreed  should  be  the  rule  between  themselves  concerning  goods 
which  might  or  might  not  be  contraband  concerned  onlv  themselves 
No  other  nation  was  benefited  or  injured  by  their  entering  into  that 
reaty  obligation.    Conversely,  the  rule  which  the  United  States  m  gl 
establish  in  conjunction  with  any  other  power  did  not  concern  Fra.'e 
The  definition  of  what  should  be  regarded  as  contraband  or  not  con^ 
traband  was  not  a  favor,  but  a  mutual  and  reciprocal  obligation      It 
worked  both  ways.     If  the  case  had  been  reversed,  and  the  United 
wouT;  ha  "  ^J*^•-'"^--t  -^  France  the  neutral,  the  e:e,np  on 

^^ould  have  operated  against  the  United  States.    If  American  cnilers 

Fr    ::^:a7m:    ""h-:;°"  '^^  '''"'  •^""•^^  merchantmen.  ,.0^::: 
hrnnce  had  made  a  d.flFerent  treaty  with  another  power,  it  can  not 

!t  is  also  contended  by  the  defendant's  counsel  that  so  much  of  the 
ar,.,  as  I.elongc.l  to  Cowper  &  Co..  of  Norfolk.  \a..  was  liable  ,0  con 

dcnination.  because  it  did  not  appear  by  the  ships  papers  that      Tn 
e„  n,l  property.     There  was.  indeed,  an  invoice'on  b.'ard  a  emng  i 
o  be  such,  hut  the  invoice  was  not  signed.     Without  parsing  "^n 

the  question  whether  such  an  invoice  should  have  U.Jr^ZT." 


o.irg<>_t!inf 


to 


evidence  by  the  prize  court  of  the  neutrRlitv  of  t  - 

ja.v.  that  ,t  was  the  property  of  Cowper  .^-  Co  .  ciH.ens  ,  f  the  Vnit.4 

Stn...,  doing  business  in   Norfolk.  X'a,_the  co.,n  is  .f  the  opinbn 


438 


JUDGMENTS  OF  THE  COURT  OF  CLAIMS 


I 

1 


.1 

I!    ! 


that  the  cargo  was  illegally  condemned  under  other  provisions  of  the 
treaty  of  1778. 

It  appears  that  the  vessel  carried  a  passport  or  sea  letter  from  the 
President  of  the  United  States,  such  as  was  provided  for  by  the  treaty, 
"to  the  end  that  all  manner  of  dissensions  and  quarrels  may  be  avoided 
and  prevented  on  one  side  and  the  other."  (Art.  XXV.)  The  last 
clause  of  the  article  is  in  these  words : 

And  if  anyone  shall  think  it  fit  or  advisable  to  express  in  the 
said  certificate  the  person  to  whom  the  goods  on  board  belong, 
he  may  freely  do  so. 

A  previous  article  (XXIII)  declares  that  free  ships  make  free 
goods,  and  that  it  shall  be  lawful  for  citizens,  people,  and  inhabitants 
of  the  said  United  States  to  sail  with  their  ships  with  all  manner  of 
liberty  and  security,  "no  distinction  being  made  who  are  the  proprietors 
of  the  merchandises  laden  thereon,  from  any  port  to  the  places  of 
those  who  now  are  or  hereafter  shall  be  at  enmity  with  the  Most 
Christian  King."     It  also  provides: 

And  it  is  hereby  stipulated  that  free  ships  shall  also  give  a 
freedom  to  goods,  and  that  everything  shall  be  deemed  to  be  free 
and  exempt  which  shall  be  found  on  board  the  ships  belonging 
to  the  subject  of  either  of  the  confederates,  although  the  whole 
lading  or  any  part  thereof  should  appertain  to  the  enemies  of 
either,  contraband  goods  being  always  excepted.  It  is  also  agreed 
in  like  manner  that  the  same  liberty  be  extended  to  persons  who 
are  on  board  a  free  ship,  with  this  elTect,  that  although  they  be 
enemies  to  both  or  either  party,  they  are  not  to  be  taken  out  of 
that  free  ship,  unless  they  are  soldiers  and  in  actual  service  of  the 
enemies. 

These  provisions  taken  together  clearly  exempted  the  shipper  and 
the  ship  from  carrying  evidence  of  neutrality  or  ownership  of  the 
cargo.  The  unquestionable  intent  of  the  treaty  was  to  rediu-e  the 
dangerous  power  of  the  right  of  search  to  a  minimum,  excepting  only 
from  its  liberal  provisions  contraband  goods. 

The  case  will  be  reported  to  Congress,  together  with  a  copv  of  this 
opinion. 


APPENDIX 


Ft 


TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


Treaty  of  Amity  and  Commerce,  February  6.  1778' 

Rhode  Island.  Connecticut.  New  chusset,  Rhode  Island    Connecti 

York,  New  Jersey.  Pennsylvania,  cut.    New    York.    Nw    Jersey 

Delaware,     Maryland      Virginia.  Pensylvanie.  les  conurde"^  W 

North  Carolina    South  Carolina,  castle,  de  Kent  et  de  SuL.;  sur 

and  Georgia   willing  to  fix  in  an  la  Delaware.  Maryland    vi^inTe 

T^:.  "h    r""r '  "^""^  ^^^°"-'  Septentrl  Je.  Caroline 

the  rules  wh,ch  ought  to  be  fol-  Meridionale.  et  Georgi^.  voutn 


lowed  relative  to  the  correspon- 
dence and  commerce  which  the 
two  parties  desire  to  establish  be- 
tween their  respective  countries, 
States,  and  subjects.  His  Most 
Christian  Majesty  and  the  said 
United  States  have  judged  that 
the  said  end  could  not  be  better 


etablir  d'une  maniere  equitable  et 
permanente  les  regies  qui  devront 
etre  suivies  relativement  a  la 
correspondance  et  au  commerce 
que  les  deux  parties  desirent 
d'etablir  entre  leurs  Pais  Etats  et 
sujets  respectifs.  sa  Majeste  trea 
Chretienne  et  les  dits  Etats  Unis 


L     ■      .     .  "--i".!      ^_llIcll^:^ne  et  les  dits   HtntQ  Tt„,\ 

oasis  of  their  aereement  thf  mr,cf     a,^  a  —  u  . 


basis  of  their  agreement  the  most 
perfect  equality  and  reciprocity, 
and  by  carefully  avoiding  all 
those  burthensome  preferences 
which  are  usually  sources  of  de- 
bate, embarrassment  and  discon- 
tent; by  leaving,  also,  each  party 


dre  a  ce  but  qu'en  prenant  pour 
base  de  leiir  arrangement  legalite 
et  la  reciprocite  la  plus  parfaite, 
et  en  observant  d'eviter  toutes  les 
preferences  onereuses,  source  de 
discussions,  d'embarras,  et  de  me- 
contentemens.  de  laisser  a  chaque 


p.'A^*"*-  ^   >2;   18  SUt.  L..  pt.  2.   p.  203;   Treaties  and   Conventions.   1889, 


442     TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


at  liberty  to  make,  respecting  com- 
merce and  navigation,  those  in  .- 
rior  regulations  which  it  shall  find 
most  convenient  to  itself ;  and  by 
founding  the  advantage  of  com- 
merce solely  upon  reciprocal  util- 
ity and  the  just  rt'les  of  free  in- 
tercourse; reserving  withal  to 
each  party  the  liberty  of  admit- 
ting at  its  pleasure  other  nations 
to  a  participation  of  the  same  ad- 
vantages. It  is  in  the  spirit  of 
this  intention,  and  to  fulfil  these 
views,  that  His  said  Majesty  hav- 
ing named  and  appointed  for  his 
Plenipotentiary,  Conrad  Alexan- 
der Gerard,  Royal  Syndic  of  the 
city  of  Strasbourg.  Secretary  of 
His  Majesty's  Council  of  State; 
and  the  United  States,  on  their 
part,  having  fully  impowered  Ben- 
jamin Franklin,  Deputy  from  the 
State  of  Pennsylvania  to  the  Gen- 
eral Congress,  and  President  of 
the  Convention  of  said  State. 
Silas  Deane,  lale  Deputy  from  the 
State  of  Connecticut,  to  the  said 
Congress,  and  Arthur  Lee,  Coun- 
cellor  at  I -aw;  the  said  respective 
Plenipotentiaries,  after  exchang- 
ing their  powers,  and  after  ma- 
ture deliberation,  have  concluded 
and  agreed  upon  the  following 
articles . 

Article  I 

There  shall  be  a  firm,  inviolable 
and  universal  peace,  and  a  true 
and    sincere    friendship    between 


partie  la  liberte  de  faire,  relative- 
ment  au  commerce  et  a  la  naviga- 
tion des  reglemens  interieurs  qui 
seront  a  sa  convenance,  de  ne  fon- 
der les  avantages  du  commerce 
que  sur  son  utilite  reciproque  et 
sur  les  loix  d'une  juste  concur- 
rence, et  de  conserver  ainsi  de 
part  et  d'autre  la  liberte  de  faire 
participer,  chacun  selon  son  gre, 
les  autres  nations,  aux  memes 
avantages.  C'est  dans  cet  esprit 
et  pour  remplir  ces  vue:  que  sa 
d*.  Majeste  ayant  nomme  et  cons- 
titue  pour  son  plenipotentiaire  U- 
S.  Conrad  Alexandre  Gerard, 
Sindic  Roial  de  la  ville  de  Stras- 
bourg, Secretaire  du  Conseil 
d'Etat  de  sa  Majeste,  et  les  Etats 
Unis  aiant,  de  leur  cote,  munis  de 
leurs  pleins  pouvoirs  les  S.  Ben- 
jamin Franklin,  Depute  au  Con- 
gres  General  de  la  part  de  I'Etat 
de  Pensylvanie.  et  President  dc  la 
Convention  du  d'.  Etat,  Silas 
Deane  ci-devant  Deprite  de  I'Etat 
de  Connecticut,  et  Arthur  Lee, 
Consciller  ^s  Loix.  les  d*.  pleni- 
potcntiaires  respectifs  apres 
I'echange  de  leurs  pouvoirs  et 
apres  mure  deliberation  ont  con- 
clu  et  arrete  les  points  et  articles 
suivans. 

Article  I 

II  y  aura  une  paix  ferme,  in- 
violable et  universi'lle  et  une  ami- 
tie  vraie  et  sincere  entre  Le  Roi 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


443 


the  Most  Christian  King,  his  heirs 
and  successors,  and  the  United 
States  of  America;  and  the  sub- 
jects of  the  Most  Christian  King 
and  of  the  said  States;  and  be- 
tween the  countries,  islands,  cities 
and  towns  situate  under  the  juris- 
diction of  the  Most  Christian 
King  and  of  the  said  United 
States,  and  the  people  and  inhab- 
itants of  every  degree,  without 
exception  of  persons  or  places; 
and  the  terms  hereinafter  men- 
tioned shall  be  perpetual  between 
the  Most  Christian  King,  his  heirs 
and  successors,  and  the  said 
United  States. 

Article  II 

The  Most  Christ  an  King  and 
the  United  States  engage  mutu- 
ally not  to  grant  any  particular 
favour  to  other  nations,  in  respect 
of  commerce  and  navigation, 
which  shall  not  immediately  be- 
come common  to  the  other  party, 
who  shall  enjoy  the  same  favour, 
freely,  if  the  concession  was  free- 
ly made,  or  on  allowing  the  same 
compensation,  if  the  concession 
was  conditional. 


tres  Chretien  ses  heritiers  et  suc- 
cesseurs,  et  entre  les  Etats  Unis 
de  I'Ar^erique  ainsi  qu'entre  les 
sujets  de  sa  Majeste  tres  Chre- 
tienne  et  ceux  des  dits  Etats, 
comme  aussi  entre  les  peuples, 
isles,  villes  et  places  situes  sous  la 
jurisdiction  du  Roi  tres  Chretien 
et  des  dits  Etats  Unis,  et  entre 
leurs  peuples  et  habitans  de  toutes 
les  classes,  sans  aucune  exception 
de  personnes  et  de  lieux ;  les  con- 
ditions mentionnees  au  present 
traite  seront  perpetuelles  et  per- 
manentes  entre  Le  Roi  tres  Chre- 
tien, ses  heritiers  et  successeurs, 
et  les  dits  Etats  Unis. 

Article  II 

Le  Roi  tres  Chretien  et  les  Etats 
Unis  s'engagent  mutuellement  a 
n'accorder  aucune  faveur  particu- 
liere  a  d'autres  nations,  en  fait  de 
commerce  et  de  navigation,  qui 
ne  devienne  ausitot  commune  a 
I'autre  partie.  et  celle-ci  jouira  de 
cette  faveur  gratuitement,  si  la 
concession  est  gratuite.  ou  en  ac- 
cordant la  nienie  compensation,  si 
la  concession  est  conditionnelle. 


■ 


Article  III 

The  subjects  o'  the  Most  Chris- 
tian King  shall  pay  in  the  ports, 
havens,  roaf1<.  countries,  islands, 
cities,  or  towns,  of  the  United 
States,  or  any  of  them,  no  other 


-Article  III 

Les  sujets  du  Roi  tres  Chretien 
ne  paieront  dans  les  ports,  havres, 
rades,  contrees,  isles,  cites  et  lieux 
dts  Etats  Unis  ou  d'aucun  d'en- 
trieux,    d'autres    ni    plus    grands 


444     TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


i 


or  greater  duties  or  imposts,  of 
what  nature  soever  they  may  be, 
or  by  what  name  soever  called, 
than  those  which  the  nations  most 
favoured  are  or  shall  be  obliged 
to  pay;  and  they  shall  enjoy  all 
the  rights,  liberties,  privileges,  im- 
munities, and  exemptions  in  trade, 
navigation  and  commerce,  whether 
in  passing  from  one  port  in  the 
said  States  to  another,  or  in  going 
to  and  from  the  same,  from  and 
to  any  part  of  the  world,  which 
the  said  nations  do  or  shall  enjoy. 


Article  IV 

The  subjects,  people  and  in- 
habitants of  the  said  United 
States,  and  each  of  them,  shall 
not  pay  in  the  ports,  havens, 
roads,  isles,  cities  and  places  un- 
der the  domination  of  His  Most 
Christian  Majesty,  in  Europe,  any 
other  or  greater  duties  or  imposts, 
of  what  nature  soever  they  may 
be,  or  by  what  name  soever  called, 
than  those  which  the  most  fa- 
voured nations  are  or  shall  be 
obliged  to  pay ;  and  they  shall  en- 
joy all  the  rights,  liberties,  privi- 
leges, immunities,  and  exemptions 
in  trade,  navigation  and  com- 
merce, whether  in  passing  from 
one  port  in  the  said  dominions,  in 
Europe,  to  another,  or  in  going  to 
and  from  the  same,  from  and  to 
any  part  of  the  world,  which  the 
said  nations  do  or  shall  enjoy. 


droits  ou  impots,  de  quelque  na- 
ture qu'ils  puissent  etrc,  ct  quel- 
que nom  qu'ils  puissent  avoir  que 
ceux  que  les  nations  les  plus  fa- 
vorisees  sont,  ou  seront  tenties  de 
paier;  Et  ils  jouiront  de  tous  les 
droits,  libertes,  privileges,  imniu- 
nites  et  exemtions  en  fait  de  ne- 
goce,  navigation  et  commerce,  suit 
en  passant  d'un  port  des  dits 
Etats  a  un  autre ;  soit  en  y  allant 
ou  en  revenant  de  quelque  partie 
ou  pour  quelque  partie  du  mondc 
que  ce  soit,  dont  les  d*.  nations 
jouissent  ou  jouiront. 

Article  IV 

Les  sujets,  peuples  et  habitans 
des  d'.  Etats  Unis  et  de  chaciin 
d'iceux  nc  paieront  dans  les  ports, 
havres,  rades,  isles,  villes  et  places 
de  la  domination  de  sa  Majcste 
tres  Chretienne  en  Europe  d'au- 
tres  ni  plus  grands  droits  ou  im- 
pots de  quelque  nature  qu'ils  puis- 
sent etre  et  quelque  nom  qu'ils 
puissent  avoir  que  les  nations  les 
plus  favorisees  sont.  ta  seront 
teniies  de  paier.  et  ils  jouiront  de 
tous  les  droits,  libertes,  privilet;es, 
immunites  et  exemtions  en  fait  de 
negoce.  navigation  et  commerce 
soit  en  passant  d'un  port  a  un 
autre  des  dits  Etats  du  Roi  tres 
Chretien  en  Europe,  soit  en  y 
allant  ou  en  revenant  de  quelque 
partie  ou  pour  quelque  partie  du 
monde  que  ce  soit,  dont  les  na- 
tions sus  d'.  jouissent  ou  jouiront. 


h  .t 


TREATY  f)F  AMITY  AND  COMMERCK.  1778 


445 


Article  V 

Jn  the  above  exemption  is  par- 
ticularly comprised  the  imposi- 
tion of  100  sols  per  ton,  estab- 
lished in  France  on  foreign  ships ; 
unless  when  the  ships  of  the 
United  States  shall  load  with  the 
merchandize  of  France  for  an- 
-vort  of  the  same  dominion, 
.  1  ■■ '  II  case  the  said  ships  shall 
!>.  uty  above-mentioned  so 

''t  .-  ther  nations  the  most 
tii/in  .!  aall  be  obliged  to  pay 
t  Bu  t  is  understood  that  the 
^  i'  T  lited  States,  or  any  of 
■  "11.  re  at  liberty,  when  they 
h;.'f  judge  it  proper,  to  establish 
-'    <luf      equivalent    in    the    same 


Article  VI 

The  Most  Christian  King  shall 
endeavour  by  all  the  means  in  his 
power  to  protect  and  defend  all 
vessels  and  the  effects  belonging 
to  the  subject"  people  or  inhabi- 
tants o'  the  sp  ,  United  States,  or 
any  o  them.  '  •.'--g  in  his  ports, 
havens,  or  roaos.  or  on  the  seas 
near  to  hif  countries,  islands, 
cities  or  towns,  and  to  recover 
and  restore  to  the  right  owners, 
their  agent  or  attornies.  all  such 
vessels  and  effects  which  shall  he 


Article  V 


IJans    lexemtion    ci-dessus   est 
noiiimement   compris  I'imposition 
de  cent  sous  par  tonneau  etablie 
en  France  sur  les  navires  etran- 
gcrs,  si  ce  n'est  lorsque  les  navires 
<lis    Etats    Unis    chargeront    des 
marchandises  de  France,  dans  un 
port  de  France,  pour  un  autre  port 
de   la   meme   domination,   auquei 
cas  les  d*.   navires  des  d*.   Etati 
Unis  acquiteront  le  droit  dont  il 
s'agit  aussi  long  terns  que  les  au- 
tres  nations  les  plus  favorisecs  se- 
ront  obligees  de  I'acquiter.     Bicn 
entendu  qu'il  sura  lihre  aux   dits 
Etats   Unis.   ou  a  aticun   d'iceux 
d'etablir.    quand    ils    le    jiK^vront 
apropos,    un    droit    equivaknt    a 
celui  dont  il  est  question  pour  le 
meme  cas  pour  lequel  il  est  etahli 
dan^  les  ports  de  sa  Majeste  tres 
Chretienne. 

Arti-^  ,E  VI 

Le  Roi  tres  Chretien  fera  usige 
de  tous  les  moiens  qui  sont  en  son 
pouvoir.  pour  i)roteger  et  defen- 
dre  tous  les  vaisseanx  et  effets 
apartenants.  aux  sujets,  penples 
et  hahitans  des  dits  Etats  Unis 
et  de  chacun  d'iceux  qui  seront 
dans  ses  ports,  havres,  ou  rades, 
ou  dans  les  mers  pres  de  ses  pays, 
contrees,  isles,  villes  et  places,  et 
fera  tons  ses  efforts  pour  re- 
cnuvrer  et  faire  restituer  aux  pro- 
priefairc';  li-'itinios,  leurs  nq-ens  ou 


!M 


n 


I.  • 


446  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


taken  within  his  jurisdiction ;  and 
the  shii>s  of  war  of  His  Most 
Christian  Majesty,  or  any  convoy 
sailing  under  his  authority,  shall 
upon  all  occasions  take  under 
their  protection  all  vessels  belong- 
ing to  the  subjects,  people  or  in- 
habitants of  the  said  United 
States,  or  any  of  them,  and  hold- 
ing the  same  course,  or  going  the 
same  way,  and  shall  defend  such 
vessels,  as  long  as  they  hold  the 
same  course  or  go  the  same  way, 
against  all  attacks,  force  and  vio- 
lence, in  the  same  manner  as  they 
ought  to  protect  and  defend  the 
vessels  belonging  to  the  subjects 
of  the  Most  Christian  King. 


mandataires,  tous  les  vaisseaux  et 
effets  qui  leur  seront  pris  dans 
I'etendue  de   sa  jurisdiction:   Et 
les    vaisseaux    de   guerre    de    sa 
Majeste   tres    Chretienne   ou   les 
convois  quelconques  faisant  voile 
sous  son  autorite,  prendront,  on 
toute  occasion,  sous  leur  protec- 
tion tous  les  vaisseaux  apartenantN 
aux  sujets,  peuples  et  habitans  dis 
d*.  Etats  Unis  ou  d'aucun  d'iceux, 
les  quels  tiendront  le  meme  cours. 
et  feront  la  meme  route,  et  ik  de- 
fendront  les  dits  vaisseaux  aiissi 
longtems  qu'ils  tiendront  If  mi'iiie 
cours  et  suivront  la  meme  route, 
contre  toute  attaque  force  oi.  vio- 
lence de  la  meme  maniere  qu  il> 
sont  tenus  de  defendre  et  de  |)r()- 
teger    les    vaisseaux    apparti'ii.in^ 
aux    sujets    de    sa    Majeste    tres 
Chretienne. 


.\RTrrr.E  VII 

In  like  manner  the  said  United 
States  and  their  ships  of  war,  sail- 
ing under  their  authority,  shall 
protect  and  deferri,  conioriiiabic 
to  the  tenor  of  the  proceiiirj;  arti- 
cle, all  the  vessels  and  rifects  be- 
longing to  the  suhj'its  of  the 
Most  Christian  Kmg.  aiul  use  all 
their  ciuleavours  to  recover  and 
cause  to  he  restored  the  said  ves- 
sels and  effects  ilial  shall  have 
iK-en  taken  within  the  jurisdiction 
r)f  the  said  United  .States,  or  any 
of  them. 


.•\RTicr.F.  V'll 

Pareillement  les  dits  F.tats  Uiii« 
et  leurs  vaisseaux  de  jjinrrc 
faisant  voile  sous  leur  ainorite 
protigeront  et  defcndront  cm- 
formement  au  contenu  dt  I'art'. 
priVedent,  tous  les  vaisseaux  et 
efTits  apartenants  aux  sujets  <lii 
Roi  iri's  C'hrelien,  et  femut  \n\\-> 
leurs  efforts  pour  recouvrer  et 
faire  restittier  les  dits  vais>eau\ 
et  efTets  qui  auront  ete  pri  d.in^ 
I'etendiie  de  la  jurisdietiou  'le^ 
dits  I'-.tats  et  de  ciiaeuii  d'ieetiv 


TREATY  OF  AMITY  AND  COMMEkCE,  1778 


447 


Article  VIII 

The  Most  Christian  King  will 
employ  his  good  offices  and  inter- 
position with  the   King  or  Em- 
peror of  Morocco  or  Fez,  the  re- 
gencies   of    Algier,    Tunis,    and 
Tripoli,  or  with  any  of  them ;  and 
also    with    every    other     Prince, 
State  or  Power,  of  the  coast  of 
Barbary,  in  Africa,  and  the  sub- 
jects of  the  said  King    Emperor. 
States  and  Powers,  and  each  of 
them,  in  order  to  provide  as  fully 
and  efficaciously  as  possible    for 
the  benefit,  conveniency  and  safe- 
ty of  the  said  United  States,  and 
each  of  them,  their  subject.s.  peo- 
ple and  inhabitants,  and  their  ves 
sels  and  effects  against  all   vio- 
lence, insult,  attacks,  or  d-preda- 
tions   on    the    part    of    the    s.iid 
Princes  and  States  of  Barbarv.  or 
their  subjects. 


Article  VIII 


Artioe  IX 

The  subjects,  inhabitants,  mer- 
chants,    commanders     of     ships, 
masters    and     mariners     of     the 
States,   provinces   and  donnnioiis 
of   each   party   res|)ectivclv    sh.ill 
ahstain  and  forl>e;ir  to  fish  in  .ill 
places  jH.ssessed  or  which  shall  \h' 
l'"~''^"^^«'<«  ".V  the  oth.r  partv;  tlu- 
Most    Christian    Kin^-s    subject, 
"hnll  not  fish  in  tlu-  havens.  I,av>. 
creeks,    roads,    coasts    or    places 
wl.ichthe  said  Tnifed  St;.tes  hnl,| 
or   "hall   hereafter    hold;   ,•,„,!    ,„ 


Le  Roi  tres  Chretien  emploiera 
ses  bons  offices  et  son  entremise 
aupres  des  Roi  ou  Empereur  de 
Maroc  ou  Fez,  des  Regences 
d  Alger,  Tunis  et  Tripoli,  ou  au- 
pres aucune  dentr'elles  ainsi  qu'- 
aupres  de  tout  autre  Prince. 
Etat  ou  Puissance  des  cotes  de 
Barbaric  en  Affrique  et  des  sujets 
Js  d«.   Roi.  Empereur.   Etats  et 

luissanceetdechacund'iceuxa 
leffet  de  pourvoir  aussi  pjcine- 
ment  et  aussi  efficacement  qu'il 
sea  possible  a  Tavantage  com- 
modite  et  surete  di-s  dits  Etats 
Ln.s  et  de  ch.-,cun  d'iceux.  ainsi 
que  de  leurs  sujets.  peuples  et 
habitans  leurs  vaisseaux  et  effets 
contre  toute  violence,  insulte.  at- 
faque  ou  depredations  de  la  part 
des  d'.  Princes  et  Etats  Barha- 
resques  ou  de  leurs  sujets. 

ARTirt.i:  TX 

I-cs  sujets.  habitans.  niar- 
chands.  conimaiidans  d.-s  navires 
niaitres  ,.,  .,„s  ,|,.  „„.,   ^^^  ^,.^,; 

provinces  et  doniaines  des  ,|,mix 
parti,,,  s-.-.l)stJ,.ndr..!it  et  eviten.nt 
recipnK,uen.,nt  de  ,,echer  dans 
KnUes  !,..  plans  (Hws.-.Krs.  „„  ,,i,i 
sen.nt  p<.ss,.,K-..-s  p.nr  ra„fr,.  par- 
"c.  I.es  suj.ls  ,1,.  sa  .\fajeste 
'rrs  (  hr.ti,,,,,,-  „<•  jw-cheront  pas 
Hnns  I,.  i,..,vr,.s.  |,,v,.s,  ,Ti,,ues, 
n.lr..  rotes  ,t  ph,-,.*  ,|„,.  |,.^  ,|i,, 
'■'•"'  '""•    P">«il«iit  ou  pussi-de- 


P 


I- 


44i>   TRKATIES  BETWEEN  THE  UNITHU  STATES  AND  FRANCE 


like  manner  the  subjects,  people 
and  inhabitants  of  the  said  United 
States  shall  not  fish  in  the  havens, 
bays,  creeks,  roads,  coasts  or 
places  which  the  Most  L'hristian 
King  possesses  or  shall  hereafter 
possess;  and  if  any  ship  or  vessel 
shall  be  found  fishing  contrary  to 
the  tenor  of  this  treaty,  the  said 
ship  or  vessel,  with  its  lading, 
proof  being  made  thereof,  shall 
be  confiscated.  It  is,  however, 
understood  that  the  exclusion 
stipulated  in  the  present  article 
shall  take  place  only  so  long  and 
so  far  as  ilie  Most  Christian  Kini; 
or  the  I'nited  State.s  shall  not  in 
this  respect  have  granted  an  ex- 
einjitii'n  to  soiiit'  other  nation. 

-Article  X 

The  United  ."^tates.  their  citi- 
zen^  and  itihaliitatits.  ~hatt  never 
distnrli  the  '•ubjcct-  of  tii.'  M(»t 
(  liri^ti.Tii  Kint;  in  tin-  enjiiyiiunt 
and  excrrise  <.f  the  rii;ht  ot  livh- 
inn  on  till  b.iiik^  lit  \*e\\fi,nnd- 
land.  nor  m  the  ir.<l(  tinitf  and  <\- 
clusivc  ri^lit  which  hclnti!,^  'u 
them  on  that  part  of  the  i<ia<!  it 
:tiat  i«land  which  i^  dciitriicd  liv 
;l'i-  treaty  of  Utrecht:  nor  in  the 
n<:!'l^  relative  to  ali  and  each  of 
tie  i^le-.  Aliich  Iwloni;  to  Hi- 
Mo-i  (  hri'-tiiti  Ma)e<^fv  ;  th* 
wliol.  conferrnalili'  tii  the  tni' 
-eriM  ..f  the  treatle-.  of  t'lreclit 
and    ''"ri" 


rcmt  a  I'avenir:  et  de  la  iiieiiic 
maniere  les  sujets,  peuples  et  ha 
bitans  des  d*.  Etats  Unis  ne  peclu  - 
ront  pas  dans  les  havres,  l)aye>. 
criques,  rades,  cotes  et  places  (nu 
sa  Majeste  tres  Chretienne  jio> 
scde  actuellenient  ou  pussciKra  a 
I'avenir,  et  si  quelquc  navire  i.n 
liatinient  etoit  surpris  pecli.iii!  eti 
violation  du  present  traiie.  I(  iln 
navire  ou  batiment  et  sa  cari.;ai>.n 
seront  confisques  apri-s  (jue  la 
preuve  en  aura  eie  faitc  dtieuii-nt 
Hien  entendu  que  rexciusioii  v 
l>ulee  dans  le  present  article  n  nira 
lieu  qu'autant.  et  si  1on>;teiii-  <|'u- 
le  Roi  et  les  F"  nis  ii  ar.r. .nt 

jMiint  accorde  a  .  i;ard  <i  e\e.  i.- 
tion  .i  quelque  nation  qne  ce  in;--. 
etre. 

.Articlk  X 

I.t's  Ivtats  Unis.  Icur^  cit  i.  ii^ 
e[  hahitans  no  tnnihlevi.:  i  mhhi- 
le-  -uiels  <hl  K"!  tre-  i  liri-tteii 
dan>-  la  jouissance  et  ixercur  .in 
droit  de  jteche  snr  U-<  tiaiu-  de 
Terre  iienve.  noil  ]>\n<  (|iie  ilaii>  'a 
|onii;sance  indefinie  et  vchi-ne 
•|U'  letir  apartien!  -ur  1  a  ;.n;  (K- 
c'.les  de  CPtle  i-le,  d.  ■.i-iiee  Im-. 
!■  traite  d'Utrecht  ir  diii-  le- 
droit-  relatifs  a  totites  e;  cliacnne 
de-  !-le-  qui  .-'.ppartieniient  a  sa 
Mni.-te  tres  ( 'liretienne  .  le  '■  ii! 
e.ir''  ':iienient  an  veritaMe  -en- 
!•      '.;ote-  -rrMrclil  .<  ,|e  i'l'-- 


TREATY  OF  AMITY  AND  COMMERCE.  17/8 


449 


AlTICLE  XI 

The  subjects  and  inhabitants  of 
the  said  United  Sutes,  or  any  one 
of    them,    shall    not    be    reputed 
aubains    in    France,    and    conse- 
quently shall  be  exempted   from 
the  droit  d'aubaine,  or  other  sim- 
ilar duty,  under  what  name  so- 
ever.    They    may    by    tesUment, 
donation,  or  otherwise,  dispose  of 
their    goods,    moveable    and    im- 
moveable, in  favour  of  such  per- 
sons as  to  them  shall  seem  good, 
and  their  heirs,   subjects  of   the 
said      United      States,      residing 
whether  m  France  or  elsewhere, 
may    succeed    them    ab    intestat, 
without   being   obliged   to   obtain 
letters  of  natnraiization,  and  with- 
out having  the  effect  of  this  con- 
cession    contested     or     impeded 
under  pretext    of   any    right'    or 
prerogative  of  provinces,  cities,  or 
pnv.ile    persons;    and     the     said 
heirs  whether  such  by  particular 
title,  or  ah  intestat.   shall   be  ex- 
empt   from  all  duty  called  dmit 
dc  d.tractuin.  or  other  dutv  of  the 
<ni,u'  kind,  saving  nevertheless  the 
local  riiihts  or  duties  as  much  and 
as   long  as   similar  ones  are   not 
establi-ihed  by  the  United  States, 
or  any  of  them.     The  subjects  of 
tl'e  Most  Christian  King  shall  en- 
joy on  their  part,  in  ,»II  the  do- 
minions  of    the    <*aid    'Jfates.    an 
f  niirr-  and  perfect  rrripr(,(-itv  rela 
tivr  t..  thf  ■*fiptilation«  contained  in 
the  present  article,  hut  it  i^  at  the 


Akticle  XI 

Les  sujets  et  habitans  des  dits 
I- tats  Unis  ou  de  I'un  d'eux  ne  se- 
lont    point    reputes    aubains    en 
r  ranee,  et  consequemment  seront 
exemts    du    droit    d'aubaine    ou 
autre  droit  semblable  quelque  nom 
qu'il  puisse  avoir;  pourront  dis- 
poser par    estament,  donation,  ou 
autrement  dc  leurs  biens  meubles 
et   immeubles  en  faveur  de  telles 
["•rsonnes  que  boii  leur    emblera  ; 
et  leurs  heritiers.  sujets  Hes  dits 
Etats     Unis,     residans     soit     en 
France  soit  ailleurs.  jwurront  leur 
succeder   ab   mtestat.    sans   qu'ils 
aient  besoin  d'obtenir  des  lettres 
de   naturalite,   et   sans  que   leffet 
de    cette    Cfincession    leur    puisse 
etre  contestc  ou  empeche  sous  pre- 
texte  <le  quelques  droits  ou  prero- 
gatives   des    provinces    villes    ou 
personnes  privees.     Et  seront  les 
dits  heritiers  soit  a  titre  particulier 
soit    ab   intestat   exemts   de    tout 
droit  de  detraction  ou  autre  droit 
de  ce  genre;  sau     n^nmoins   les 
droits  locaux  tant.  et  si  longtems, 
qu'il    n'en    sera    point    etabli    de 
pareils  par  les  dits  Etats  Unis  ou 
aucun  d'iceux.     I^s  sujets  dii  Koi 
tres  Chretien  jouiront  de  leur  cAte 
dans   tons   !es   domaines   des   dits 
F.tats    dune    entiere    et    parfaite 
recipr<«-itp  relativenunt  aux  sftpu 
lations  renferniees  dans  le  present 
article       Mais    il    ,.st   mnvenu   en 
'nenv    (eni'^    que    son    fontcnu    ne 
portrra   aiuime   atteinte  aux    loi\ 


».- 


450  TRKATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


same  time  agreed  that  its  contents 
shall  not  atfect  the  laws  made,  or 
lliat  may  lye  made  hereafter  in 
France  against  emigrations  which 
sliall  remain  in  all  their  force  and 
vigour,  and  the  United  States  on 
their  part,  or  any  of  them,  shall 
be  at  liberty  to  enact  such  law> 
rclalivc  to  that  niaiter  as  to  them 
.-hall  seem  proper. 


proniulguees  en  France  contre  Us 
emigrations,  ou  qui  pourront  etrc 
promulguces  dans  la  suite.  k> 
quelles  denieureront  dans  toute 
leur  force  et  vigueur.  Les  Etats 
L'nis  de  leur  cote  ou  aucun  d'en- 
tr'eux,  seront  libres  de  statiier  sur 
cette  matiere  telle  loi  qu'ils  juiro- 
ront  apropos. 


Article  XII 

riu-  mercliant  sliips  of  eitht-r  of 
the  parties  which  shall  he  makiiv,' 
into  a  port  l)ilnnt;in!,'  l"  the  <-iir- 
my  of  the  other  ally,  and  con- 
cernins;  \vh(i-;i'  voyage  and  the 
■i|>ci-iis  of  giiods  on  board  lur 
there  >hall  be  just  grounds  of 
sus|iici()n,  shall  be  obliged  to  f\- 
hibil,  as  well  u|>oii  the  iiigh  --<;is 
a-,  m  the  port>i  and  havens,  not 
onl\  her  p.-i-'-pnrts.  but  hkewi-.i- 
cortificatt's,  e\prt'ssl\  -ihewini; 
that  her  g.i.xls  .ir.'  mil  nf  ihi- 
ri'iinlHT  iif  tliM^c  uliii-b  Iia\c  liecn 
prnhiliitid  as  contraband. 


.\rticle  XII 

l.cs  navires  marchands  di - 
ilcu.K  parlies  qui  seront  de~;m,- 
iHiur  des  ports  apparlenaiit~  .i  u:,. 
(luissance  ennemic  de  I'lutu'  lilu 
it  dont  le  voiage  ou  la  natiirr  i. - 
niarcliandises  dont  ils  mT' n: 
cliari;e<  donneroit  de  justr-  -.  n;, 
*;ons.  seront  teiuis  d'e.xliilx  i  -.  •; 
en  haute  mer,  soit  dans  Ic-  j.  :i. 
it  havres,  non  seulenniu  It -.r- 
passi'iHirts  mais  encore  ks  ccr!  ': 
>'ats  qui  constateront  cvpr.  -.  - 
uiiMit  que  leur  charucnifiil  i  -t 
|>a~  de  la  qualite  de  ceiix  mh;  -  ■;  ■ 
prohibes  ciimnie  ci>ntreli.in(i' 


.\kticlf  XIII 


Aktk  1,1    \I  II 


1 1     !n     111.-    exhibiting    ,.t     ihe  Si    r.xhibitK.n   ,U-<   dn-   , 

above.said  certificates  the  utlur  i-.its  cco.iuil  a  dnoiivrir  . 
patl\  (|i>r, .vtr  then-  are  atn  ni 
tliiiM'  -iort^  lit  giiniK  wli'rii  .ire 
pmhihitefl  and  declared  ((intra- 
kind  .Old  r.iiisijiicd  fur  a  pcirt 
under  itir  ..lii-diriio-  <if  bi~  ent- 
mil--;.  II  vli.ill  lint  be  lawful  (n 
hriuk  u:i  lln'  liatrlie-i  nf  <ucli  -hiii 


li.ivire     purte     de-     mar.-lian.i  • 

pT'ihlhrC^   1  !    t-c))ntlC»  Ciilltlit.,,'  ,'; 

ciin^i^nei'-   p<iitr   un   pert   i  ii!-,  ■ 
il  lie  sera  pa--  jiermi-  .|i    ("■■  •  ■   ' 

(■(•:iUlillc-i       (Ir-        (hi-       llU  !|i  - 

(!'■  nivrir     -iiK-ime     (■.•ti--c.     i  •  ■  • 
malic    ball.il-,   l.iiiiiraiiv   d  -.uv 


TREATY  OK  AMITY  AND  COMMERCE,  1778 


451 


or    to    open    any    chest,    coffers, 
packs,  casks,  or  any  other  vessels 
found  therein,  or  to  remove  the 
smallest    parcels    of    her    goods, 
whether  such  ship  belongs  to  the 
subjects  of  France,  or  the  inhabi- 
tants of  the  said  United  States, 
unless  the  lading  be  brought  on 
shore  in  the  presence  of  the  offi- 
cers of  the  court  of  admiralty,  and 
an   inventory  thereof   made;  but 
there  shall  be  no  allowance  to  sell, 
exchange  or  alienate  the  same,  in 
any  manner,  until  after  that  due 
and  lawful  process  shall  have  been 
had  a-,'ainst  such  prohibited  goods, 
and  the  court  of  admiralty  shall 
1)>    a    sentence   pronounced   have 
ointiscated   the   same;   saving  al- 
ways as  well  the  ship  itself  as  any 
olhtr  goods  found  therein,  which 
l)v  this  treaty  are  to  be  esteemed 
free,  neither  may  they  be  detained 
on  pretence  of  their  being  as  it 
were   infected    by   the   prohibited 
KiKxU.  nnich  less  shall  they  be  con- 
fiscated, as  lawful   prize;   but   if 
not  the  whole  cargo,  but  only  part 
ihcreof.  sliall  consist  of  prohibited 
'ir    contraband    goods,    and    the 
oimmandf'    of  the   ship   shall   K- 
n:i'K    inil  willing  to  deliver  them 
t"  I  he  captor  who  has  discovered 
'lurn.  in  such  case  the  captor  hav- 
I'K    received    those    goods    sh.ill 
forflnviih  discharge  the  ship,  and 
not    lunder    hrr    bv    ,inv    means 
freelv  to  prosecute  the  vovaije  on 
which  she  was  hound    Hut  in  case 


caisses  qui  s'y  trouveront,  ou  den 
deplacer  et  detourner  la  moindre 
partie  des  marchandises  soit  que 
le  navire  apartienne  aux  sujets  du 
Koi  tres  Chretien  ou  aux  habitans 
des  Etats  Unis,  jusqu'a  ce  que  la 
cargaison  ait  ete  mise  a  terre  en 
presence   des   officiers   des   cours 
d'amiraute,  et  que  I'inventaire  en 
ait  ete  fait ;  mais  on  ne  permettra 
pas  de  vendre,  echanger  ou  aliener 
les  navires  ou  leur  cargaison  en 
manierc  quelconque,  avant  que  le 
proces  ait  ete  fait  et  parfait  legale- 
ment     pour    declarer    la    contre- 
bande.  et  que  les  cours  d'amiraute 
aurrmt  prononce  leur  confiscation 
par     jui;enient.      sans     prejudice 
neanmoins  des  navires.  ainsi  que 
des  marchandises  qui  en  vertu  du 
traite  doivent  etre  censees  libres. 
II   ne  sera  [>as  permis  de  retcnir 
ces    marchandises    sons    pretexte 
qu'elles  ont  ete  entachecs  par  les 
marchandises    de    contrehande    et 
bien   moins  encore  de  les  confis- 
quer    comme    de<    prises    legales 
Hans  le  cas  on  une  part  it-  scnle- 
ment  et  non  la  totalitt-  du  charge- 
ment  consisteroit  en  marchandises 
de   contrehande.    et    que    le   com- 
mandant du   vaisseau   consente  a 
les    delivnr   an    corsaire    qui    les 
aura    decouvertes,    ,'ilor<    le    capi- 
taine  qui  aura  fait  la  prise,  aprivs 
avoir  nxn  C'^  marchandises.  doit 
incontinent    relacher   le   navire   et 
ne  doit  IVmpecher  <n  aiiciine  ma- 
niere    i|e    continuer    son    voia'>e. 


'"l 


452  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


.1 


the  contraband  merchandises  can- 
not be  all  received  on  board  the 
vessel  of  the  captor,  then  the  cap- 
tor may,  notwithstanding  the  oflfer 
of  delivering  him  the  contraband 
goods,  carry  the  vessel  into  the 
nearest  port  agreeable  to  what  is 
above  directed. 


Article  XIV 

On  the  contrary,  it  is  agreed 
that  whatever  shall  be  found  to  be 
laden  by  the  subjects  and  inhabi- 
tants of  either  party  on  any  ship 
belonging  to  the  enemys  of  the 
other,   or   to   their   subjects,    the 
whole,  although  it  be  not  of  the 
sort  of  prohibited  goods,  may  be 
confiscated   in   the   same   manner 
as  if   it  belonged  to  the  enemy, 
except  such  gw)ds  and  merchan- 
dizes as  were  put  on  board  such 
ship  before  the  declaration  of  war, 
or  even  after  -iich  declaratinn,  if 
so  be  it  were  done  without  knowl- 
edge of  such  declaration     So  that 
the  goods  of  the  subjects  and  jwo- 
plc  of  either  party,  whether  they 
be  of  the  nature  of  such  as  are 
prohibited  or  otherwise,  which,  as 
is  aforesaid,  were  put   on  board 
any   ship  belonging  to  an  enemy 
before  the  war  or  after  the  declar- 
ation   of    the    same,    without    the 
knowledge  of  it.  shall  no  ways  lie 
liable    fo    confiscation,    hut    shall 
well  and  truelv  be  restored  with- 
out delay  to  the  proprietors  de- 


Mais  dans  le  cas  ou  les  marchan- 
dises  de  contrebande  ne  pourroient 
pas  etre  toutes  chargees  sur  le 
vaisseau  capteur,  alors  le  capitaine 
du  d*.  vaisseau  sera  le  maitre,  mal- 
gre  I'oflFre  de  remettre  la  contre- 
bande, de  conduire  le  patron  dans 
le  plus  prochain  port,  confornie- 
ment  a  ce  qui  est  prescrit  plus 
haut. 

Artici-e  XIV 

On   est   convenu   au   contra  ire 
que     tout    ce    qui     se     trouvera 
charge   par    les    sujets    resjKjctifs 
sur  des  navires  apartenants  aux 
ennemis   de    I'autre    partie   mi   a 
leurs   st.'-»s   sera   confisque   sans 
distinction  des  marchandises  jiro- 
hibees  ou  non  prohibees,  ainsi  ct 
de  meme  que  si  elles  appartenoicnt 
a  I'ennemi,  a  I'exception  toute  fuis, 
des    eflfets    et    marchandises    qui 
auront   ete  mis   a   bord   des  dits 
navires   avant    la    declaration   de 
guerre,  ou  meme  apres  la  d*.  de- 
claration, si  au  moment  du  charge 
ment  on  a  pu  I'ipnorer,  de  manicre 
que   les    marchandises   des   stijrt^ 
des  deux  parties,   soit  qn'ellcs  se 
tronvent  du  nomhre  de  celles  de 
contrebande     ou    autrenient,    le- 
(jtielles  comme  il  vient  d'etre  dit. 
auront  ete  mises  a  bord  dim  vais 
seau  apartenant  a  I'ennemi.  .nvant 
la  guerre  ou  meme  apres  l,i  d'  de- 
claration, lorsqu'on  I'ignoroit.  ne 
^eront  en  aucune  maniere,  suicti  s 
.1  confiscation,  ni.iis  seront  fidelr- 
ment  et  de  honne  foi  rendiies  s.nn-. 


TREATY  OF  AMITY  AND  :OMMERCE.  1778 


453 


manding  the  same ;  but  so  as  that 
if  the  said  merchandizes  be  con- 
traband, it  shall  not  be  any  ways 
lawful  to  carry  them  afterwards 
to  any  ports  belonging  to  the 
enemy.  The  two  contracting  par- 
ties agree,  that  the  term  of  two 
months  being  passed  after  the  dec- 
laration of  war,  their  respective 
subjects,  from  whatever  part  of 
the  world  they  come,  shall  not 
plead  the  ignorance  mentioned  in 
this  article. 

Article  XV 

And  that   more  eflFectual   care 
may  be  taken  for  the  security  of 
the   subjects   and   inhabitants   of 
both  parties,  that  they  suffer  no 
injury  by  the  men-of-war  or  pri- 
vateers of  the  other  party,  all  the 
commanders  of  the  ships  of  His 
Most   Christian   Majesty  and  of 
the  said   United   States,   and  all 
their    subjects    and    inhabitants, 
shall  be  forbid  doing  any  injury 
or  damage  to  the  other  side ;  and 
if  they  act  to  the  contrary,  they 
shall  be  punished,  and  shall  more- 
over be  bound  to  make  satisfac- 
tion for  all  matter  of  damage,  and 
the  interest  thereof,  by  reparation, 
under  'he  pain  and  obligation  of 
their  person  and  jjoods. 


delai  a  leurs  proprietaires,  qui  les 
reclameront;  bien  entendu  nean- 
moins  qu'il  ne  soit  pas  permis  de 
portee  dans  les  ports  ennemis  les 
marchandises  qui  seront  de  con- 
trebande.     Les  deux  parties  con- 
tractantes     conviennent     que     le 
tcrme  de  deux  mois.  passes  depuis 
la  declaration  de  guerre,  leurs  su- 
jets  respectifs,  de  quelque  partie 
du  monde  qu'ils  viennent  ne  pour- 
ront  plus  alleguer  I'ignorance  dont 
il    est   question    dans    le    present 
article. 

Arhcle  XV 

Et  afin  de  pourvoir  plus  eflica- 
cenient  a  la  surete  des  sujets  des 
deux   parties  contractantes.   pour 
qu'il  ne  leur  soit  fait  aucun  pre- 
judice par  les  vaisseaux  de  guerre 
de  iautre  partie  ou  par  des  arma- 
teurs  particuliers.  il  sera  fait  de- 
fense a  tous  capitaines  des  vais- 
seaux  de   sa   Majeste  tres  Chre- 
tienne  et  des  dits  Etats  Unis.  et  a 
tous  leur*   nijets   dc   faire   aucun 
dommage    ou    insultc   a   ceiix    de 
I'autre  parti.-,  vt  nu  oas  dm   ik  y 
c<>ntrpvi..iidn,ienf.     ,Is    en    M-ront 
punis.  rr.  <i.-  plus,  ,ls  seront  t.-nus 
et  nhliut-s  en  l.-ur*  p<-rsnnncs  .■(  on 
leurs    hicns    d."    rqwrcr    tous    I^s 
dotiinintjfs  t-t  interi-ts 


A«T1(XE   XVI 

All  ships  and  merchandrres.  of 
what  n-iture  soever   which  ^hall  he 


ous  v.iiss,.,-uiv.  ,1  inarchatrdi,.'- 


454   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


rescued  out  of  the  hands  of  any 
pirates  or  robbers  on  the  high 
seas,  shall  be  brought  into  some 
port  of  either  State,  and  shall  be 
delivered  to  the  custody  of  the 
officers  of  that  port,  in  order  to 
be  restored  entire  to  the  true  pro- 
prietor, as  soon  as  due  and  suffi- 
cient proof  shall  be  made  con- 
cerning the  property  thereof. 

Article  XV^II 

It  shall  be  lawful  for  the  ships 
of  war  of  either  party,  and  pri- 
vateers,  freely  to  carry  whither- 
soever they  please  the  ships  and 
g(K)ds  taken  from  their  enemies, 
without  being  obliged  to  pay  any 
duty  to  the  officers  of  the  admi- 
ralty  or  any   other   judges;   nor 
shall   such  prizes  be  arrested  or 
seized    when    they    come    to   and 
enter  the  ports   of  either  party; 
nor  shall  the  searchers  or  other 
officers  of  those  places  search  the 
same,  or  make  examination  con- 
cerning   the    lawfulness   of    such 
prizes,  but  they  may  hoist  sail  at 
any  time,  and   depart  and  carry 
their    prizes    to    the    places    ex- 
pressed    in     their     commissions, 
which    the   commanders   of    such 
ships  of  war  shall  be  obliged  to 
show ;  on  the  contrary,  no  shelter 
or  rpfuge  shall  be  given  in  their 
ports  to  such  as  shall  have  made 
prize   of   the   subjects,   people   or 
Dnipcrty  of  either  of  the  parties; 


etre,  lors  qu'ils  auront  ete  enleves 
des  mains  de  quelques  pirates  en 
pleine  mer,  seront  amenes  dans 
quelque  port  de  I'un  des  deux 
Etats,  et  seront  remis  a  la  garde 
des  officiers  du  dit  port  afin  d'etre 
rendus,  en  entier,  a  leur  veritable 
proprietaire,  aussitot  qu'il  aura 
diiement  et  sufisament  fait  cons- 
ter  de  sa  propriete. 

Article  XVII 

Les  vaisseaux  de  guerre  de  sa 
Majeste  tres  Chretienne  et  ciux 
des  Etats  Unis,  de  meme  que  cciix 
que  leurs  sujets  auront  amies  in 
guerre,  pourront,  en  toute  lihertt'. 
conduire  oil  bon  leur  scmblem  les 
prises    qu'ils    auront    faitcs    siir 
leurs  ennemis.  sans  etre  ob!ii,'is  a 
aucuns    droits,    soit    des    sicurs 
amiraux  ou  de  ramiraiite  oii  d'au- 
cuns  autres,  sans  qu'aussi  les  dit> 
vaisseaux   ou   les   d*.   prises,   en- 
trant dans  les  havres  ou  ports  de 
sa  Majeste  tres  Chretienne  ou  des 
dits  Ftats  Unis,  puissent  etre  ,ir- 
retes  on  saisis.  ni  que  les  otTicier- 
des   lieux   puissent   prendre   om- 
noissance    de   la    validite   de,   d' 
prises,  les  quelles  pourront  sortir 
et  etre  conduites   franchenient   et 
en  toute  liberte,  .lux  lieux  portes 
par  les  commissions  dont  les  capi- 
taines   des    dits   vaisseaux    seront 
obliges   de    faire  apaniir.      Ft   .tu 
contraire.  nc  sera  dimne  nsile  ni 
rctraite  dnns  leurs  p^rts  on  li;ivrr^ 


TREATY  OF  AMITY  AND  COMMERCE,  1778                   455 

but  if  such  shall  come  in,  being  a  ceux  qui  auront  fait  des  prises 

forced  by  stress  of   weather,  or  sur  les  sujets  de  sa  Majeste  ou  des 

the  danger  of  the  sea,  all  proper  dits  Etats  Unis ;  et  s'ils  sont  forces 

means   shall   be   vigorously   used  dV  entrer  par  tempete  ou  peril  de 

that  they  go  out  and  retire  from  la  n,er.  on  les  fera  sortir  le  plustot 

thence  as  soon  as  possible.  qu'il  sera  possible 


Article  XVIII 

If  any  ship  belonging  to  either 
of  the  parties,  their  people  or 
subjects,  shall,  within  the  coasts 
or  dominions  of  the  other,  stick 
upon  the  sands,  or  be  wrecked,  or 
suffer  any  other  damage,  all 
friendly  assistance  and  relief  shall 
be  given  to  the  persons  siiip- 
wrecked,  or  such  as  shall  be  in 
danger  thereof.  And  letters  of 
safe  conduct  shall  likewise  be 
given  to  them  for  their  free  and 
quiet  passage  from  thence  and 
the  return  of  everj'  one  to  his 
own  country. 


■Article  XVIII 

Dans  le  cas  ou  un  vaisseau 
apartenant  a  Tun  des  deux  Etats 
ou  a  leurs  sujets,  aura  echoue, 
fait  naufrage  ou  souffert  quelqu' 
at-re  dommage  sur  les  cotes  ou 
sous  la  domination  de  Tune  des 
deux  parties,  il  sera  donne  toute 
aide  et  assistance  amiable  aux  per- 
sonnes  naufragees  ou  qui  se  trou- 
vent  en  danger,  et  il  leur  sera  ac- 
ccjrde  des  sauf  conduits  pour  as- 
surer leur  passage  et  leur  retour 
dans  leur  patrie. 


Article  XIX 

In  case  the  subjects  and  inhabi- 
tants of  either  party,  with  their 
shipping,  whether  publick  and  of 
war.  or  private  and  of  merchants, 
be  forced,  through  stress  of 
weather,  pursuit  of  pirates  or  ene- 
mies, or  any  other  urgent  neces- 
sity for  seeking  of  shelter  and 
harb<nir.  to  retreat  and  enter  into 
any  of  the  rivers,  bays,  roads,  or 
ports  belonging  to  the  other  party, 
they  shall  he  received  and  treated 
with  all  humanity  and  kindness. 


Articlk  XIX 

Lorsque  les  sujets  et  habitans 
de  I'une  des  deux  parties  avec 
leurs  vaisseaux  soit  publics  et  de 
guerre,  soit  particuliers  et  mar- 
chands.  seront  forces  par  une  tem- 
pete. par  la  poursuite  des  pirates 
et  des  cnneniis,  on  par  quelqu' 
autre  necessite  tirgente.  de  cher- 
cher  refuge  et  un  abri.  de  se  re- 
tirer  et  entrer  dans  quelqu'  une 
des  rivieres,  bayes,  rades  on  ports 
de  rune  des  deux  parties,  ils  se- 
ront revus  et  traites  avec  huma- 


'5 

1 


i--  . 


456  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


and  enjoy  all  frietidly  protection 
and  help;  and  they  shall  be  per- 
mitted to  refresh  and  provide 
themselves,  at  reasonable  rates, 
with  victuals  and  all  things  need- 
ful for  the  sustenance  of  their 
persons  or  reparation  of  their 
ships,  and  conveniency  of  their 
voyage ;  and  they  shall  no  ways  be 
detained  or  hindered  from  return- 
ing out  of  the  said  ports  or  roads, 
but  may  remove  and  depart  when 
and  whither  they  please,  without 
any  let  or  hindrance. 


Article  XX 

For  the  better  promoting  of 
commerce  on  both  sides,  it  is 
agreed  that  if  a  war  shall  break 
out  between  the  said  two  nations, 
six  months  after  the  proclamation 
of  war  shall  be  allowed  to  the 
merchants  in  the  cities  and  towns 
where  they  live  for  selling  and 
transporting  their  goods  and  mer- 
chandizes; and  if  any  thing  be 
taken  from  them,  or  any  injury 
be  done  them  within  that  term  by 
either  party,  or  the  people  or  sub- 
jects of  either,  full  satisfaction 
shall  be  made  for  the  same. 


Articlf  XXI 


nite,  et  jouiront  de  toute  amitie, 
protection  et  assistance,  et  il  leur 
sera  permis  de  se  pourvoir  de 
raffraichissemens,  de  vivres,  et  de 
toutes  choses  necessaires  pour  leur 
subsistance,  pour  la  reparation  de 
leurs  vaisseaux,  et  pour  continiier 
leur  voiage ;  le  tout  moiennant  un 
prix  raisonable,  et  ils  ne  seront 
retenus  en  aucune  maniere,  ni  em- 
peches  de  sortir  des  dits  ports  ou 
rades,  mais  pourront  se  retirer  et 
partir  quand,  et  comme  il  leur 
plaira,  sans  aucun  obstacle  ni  em- 
pechement. 

Article  XX 

Afin  de  promouvoir  d'autant 
mieux  le  commerce  de  deux  cotes, 
il  est  convenu  que  dans  le  cas  oil 
la  guerre  surviendroit  entre  les 
deux  nations  susdites,  il  sera  ac- 
corde  six  mois,  apres  la  declara- 
tion de  guerre,  aux  marchands 
dan.s  les  villes  et  cites  qu'ils  habi- 
tent.  pour  rassembler  et  transpor- 
ter les  marchandises :  et  s'il  en  est 
enleve  quelque  chose  ou  s'il  leur  a 
ete  fait  quelqu'  injure  durant  Ic 
terme  prcscrit  ci-dessus.  par  Tune 
des  deux  parties,  leurs  peuples  "U 
sujets.  il  leur  sera  donne  a  c<t 
egard  pleine  et  enticre  satisfac- 
tion. 

.\rticle  XX I 


No  subjects  of  the  Most  Oiris-  Aucun  sujet  du  Roi  frcs  Oirr- 
tian  Kinu'  shall  apply  for  or  take  tien  ne  prendra  de  cnnmiissimi  on 
anv    coniinission.    or    letters    of      de  lettres  de  marque,  pour  aniier 


TREATY  OF  AMITY  AND  COMMERCE.  1778 


marque,  for  arming  any  ship  or 
ships  to  act  as  privateers  against 
the  said  United  Stotes,  or  any  of 
them,  or  against  the  subjects,  peo- 
ple  or  inhabitanU   of   the   said 
United  States,  or  any  of  them,  or 
against  the  property  of  any  of  the 
inhabitants  of  any  of  them,  from 
any  Prince  or  State  with  which 
the  said  United  States  shall  be  at 
war;  nor  shall  any  citizen,  sub- 
ject, or  inhabitant  of  the  said  Uni- 
ted States,  or  any  of  them,  apply 
for  or  take  any  commission  or 
letters  of  rnarque  for  arming  any 
ship  or  ships  to  act  as  privateers 
against  the  subjects  of  the  Most 
Christian  King,  or  any  of  them, 
or  the  property  of  any  of  them, 
from  any  Prince  or  State  with 
which  the  said  King  shall  be  at 
war;  and  if  any  person  of  either 
nation  shall   take   such   commis- 
sions   or   letters    of    marque,    he 
shall  be  punished  as  a  pirate. 


Articxe  XXII 
It  shall  not  be  lawful  for  any 
foreign  privateers,  not  belonging 
to  subjects  of  the  Most  Christian 
King  nor  citizens  of  the  said  Uni- 
ted States,  who  have  commissions 
from  any  other  Prince  or  State  in 
enmity  with  either  nation,  to  fit 
their  ships  in  the  ports  of  either 
the  one  or  the  other  of  the  afore- 
said parties,  to  sell  what  thev  have 


457 

quelque  vaisseau  ou  vaisseaux  a 
leffet    d'agir    comme    corsaires 
contre  les  dits  Etats  Unis  ou  quel- 
ques  uns  d'entr'  eux,  ou  contre  les 
sujets.      peuples      ou      habitans 
d'lceux,  ou  contre  leur  propriete 
ou  celle  des  habitans  d'aucun  d'en- 
tr' eux.  de  quelque  prince  que  ce 
soit  avec  lequel  les  dits  Etats  Unis 
seront  en  guerre.    De  meme  aucun 
citoien,  sujet,  ou  habitant  des  sus- 
d/ts  Etats  Unis  et  de  quelqu'  un 
d'entr'    eux,    ne    demandera    ni 
n'acceptera  aucune  commission  ou 
lettres    de    marque,    pour   armer 
quelque    vaisseau.    ou    vaisseaux 
pour  courre  sus  aux  sujets  de  sa 
Majeste  tres  Chretienne.  ou  quel- 
ques  uns  d'entre  eux  ou  leur  pro- 
priete, de  quelque  prince  ou  etat 
que  ce  soit  avec  qui  sa  d:  Majeste 
se  trouvera  en  guerre ;  et  si  quel- 
qu' un  de  I'une  ou  de  I'autre  na- 
tion prenoit  de  pareillcs  commis- 
sions ou  lettres  de  marque,  il  sera 
puni  comme  pirate. 

.\rticle  XXII 

II  ne  sera  permis  a  aucun  cor- 
saire  etranger  non  apartenant  a 
quelque  sujet  de  sa  Majeste  tres 
Chretienne  ou  a  un  citoien  des  dits 
Etats  Unis.  lequel  aura  «ne  com- 
mission de  la  part  d'un  prince  ou 
d'une  puissance  en  guerre  avec 
I'une  des  deux  nrtions,  d'armer 
leurs  vaisseaux  dans  les  ports  de 
I'une  des  deux  parties,  ni  d'y  ven- 


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458   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


taken,  or  in  any  other  manner 
whatsoever  to  exchange  their 
ships,  merchandizes  or  any  other 
lading;  neither  shall  they  be  al- 
lowed even  to  purchase  victuals, 
except  such  as  shall  be  necessary 
for  their  going  to  the  next  port 
of  that  Prince  or  State  from 
which  they  have  commissions. 


dre  les  prises  qu'il  aura  faites,  ni 
decharger  en  autre  maniere  quol- 
conque  les  vaisseaux,  marchan- 
dises  ou  aucune  partie  de  leur  car- 
gaison;  il  ne  sera  meme  pas  pcr- 
mis  d'acheter  d'autres  vivres  que 
ceux  qui  lui  seront  necessaircs 
pour  se  rendre  dans  le  port  le  plus 
voisin  du  prince  ou  de  I'etat  dont 
il  tient  sa  commission. 


Article  XXIII 

It  shall  be  lawful  for  all  and 
singular  the  subjects  of  the  Most 
Christian  King,  and  the  citizens, 
people  and  inhabitants  of  the  said 
United  States,  to  sail  with  their 
ships  with  all  manner  of  liberty 
and  security,  no  distinction  being 
made  who  are  the  proprietors  of 
the  merchandizes  laden  thereon, 
from  any  port  to  the  places  of 
those  who  now  are  or  hereafter 
shall  be  at  enmity  with  the  Most 
Christian  King  or  the  United 
States.  It  shall  likewise  he  law- 
ful for  the  subjects  and  inhabi- 
tants aforesaid  to  sail  with  the 
sh'ps  and  merchandizes  aforemen- 
tioned, and  to  trade  with  the  same 
liberty  and  stcun  from  the 
places,  ports  and  havens  of  those 
who  are  enemies  of  both  or  either 
party,  without  any  opposition  or 
disturbance  whatsoever,  not  only 
directly  from  the  places  of  the 
enemy  aforementioned  to  neutral 
places,  but  also   from  one  place 


Article  XXIII 

II  sera  permis  a  tous  et  un  cha- 
cun  des  sujets  du  Roi  tres  Chre- 
tien et  aux  citoiens,  peuple  et  ha- 
bitans  des  susdits  Etats  Unis,  de 
naviguer  avec  leurs  batimens  avec 
toute  liberte  et  surete,  sans  qu'il 
puisse  etre  fait  d'exception  a  cet 
egard,  a  raison  des  proprietaircs 
des  marchandises  chargees  sur  les 
dits  batimens  venant  de  quelque 
port  que  ce  sf»it,  et  destines  pour 
quelque  place  d'une  puissance 
actuellement  ennemie,  ou  qui 
pnurra  I'etre  dans  la  suite  dc  sa 
Majeste  tres  Chretienne  ou  des 
Etats  Unis.  II  sera  permis  etjalc- 
ment  aux  sujets  et  habitans  >ius 
iiientionnes  de  naviguer  avec  leurs 
vaisseaux  et  marchandises  cf  de 
frequenter  avec  la  meme  liberte 
et  surete,  les  places,  ports,  et 
havres  des  puissances  emiemies 
des  deux  parties  confractantes  ou 
d'une  d'entre  elles,  sans  opposition 
ni  trouble,  et  de  faire  le  cnuuiierrc 
non    seulement     directcment    des 


TREATY  OF  AMITY  AND  COMMERCK,  1778 


459 


belonging  to  an  enemy  to  another 
place    belonging    to    an    enemy, 
whether  they  be  under  the  juris- 
diction of  the  same  Prince  or  un- 
der several.    And  it  is  hereby  stip- 
ulated that  free  ships  shall  also 
give  a  freedom  to  goods,  and  that 
everything  shall  be  deemed  to  be 
free  and  exempt  which  shall  be 
found  on  board  the  ships  belong- 
ing to  the  subjects  of  either  of  the 
confederates,  although  the  whole 
lading  or  any  part  thereof  should 
p.ypertain  to  the  enemies  of  either, 
contraband  goods  being  always  ex- 
cepted.    It  is  also  agreed  in  like 
manner  that  the  same  liberty  be 
extended  to  persons  who  are  on 
board  a  free  ship,  with  this  effect, 
that  although  they  be  enemies  to 
both  or  either  party,  they  are  not 
to  be  taken  out  of  that  free  ship, 
unless   they  are   soldiers   and   in 
actual  service  of  the  enemies. 


-Article  XXIV 

This  liberty  of  navigation  and 
commerce  shall  extend  to  all  kinds 
of  merchandizes,  excepting  those 
only  which  are  distinguished  by 
the  name  of  contraband ;  and  un- 
der this  name  of  contraband  or 
prohibited  goods  shall  be  compre- 
hended arms,  great  guns,  bombs 
with  the  fuzes,  and  other  things 


ports  de  I'ennemi  susdit  a  un  port 
neutre,  mais  aussi  d'un  port  en- 
nemi  a  un  autre  port  ennemi,  soit 
qu'il  se  trouve  sous  sa  jurisdiction 
ou  sous  celle  de  plusieurs ;  et  il  est 
stipule  par  le  present  traite  que  les 
batimens  libres  assureront  egale- 
ment  la  liberte  des  marchandises, 
et  quon  jugera  libres  toutes  les 
choses  qui  se  trouveront  abord  des 
navires    apartenants    aux    sujets 
dune    des    parties    contractantes, 
quand    meme    le    chargement    ou 
partie    d'icelui   apartiendroit    aux 
ennemis  de  I'une  des  deux;  bien 
entendu  neanmoins  que  la  contre- 
bande  sera  toujours  exceptee.     II 
est  egalement  convenu  que  cette 
memo  liberte  s'etendroit  aux  per- 
sonnes  qui  pourroient  se  trouver 
abord   du    batiment    libre.   quand 
meme  elles  seroient  ennemies  de 
I'une  des  deux  parties  contractan- 
tes, et  elles  ne  pourront  etre  en- 
levees  des  dits  navires,  a  moins 
qu'elles    ne    soient    militaires    et 
actuellement   au   service   de   I'en- 
nenii. 

■ARTrcr.E  XXIV 

Cette  liberte  de  navigation  et  de 
conmierce  cinit  s'etendre  sur 
toutes  .sortes  de  marchandises,  a 
I'exception  soulement  de  celles  qui 
sont  designees  .sous  le  nom  de  con- 
trehandc:  Sous  ce  nom  de  contre- 
bande  on  de  marchandises  prohi- 
bees.  doivent  etre  compris  les 
amies,  canons,  honibes  avec  leurs 


460    TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


belonging   to   them,   cannon-ball, 
gunpowder,  match,  pikes,  swords, 
lances,  spears,  halberds,  mortars, 
petards,  granades,  saltpetre,  mus- 
kets,   musket-ball,   bucklers,    hel- 
mets, breast-plates,  coats  of  mail, 
and  the  like  kinds  of  arms  proper 
for  arming  soldiers,  musket-rests, 
belts,  horses  with  their  furniture, 
and  all  other  warlike  instruments 
whatever.      These    merchandizes 
which   lollow  shall  not  be   reck- 
oned among  contraband  or  pro- 
hibited goods;  that  is  to  say,  all 
sorts    of    cloths,    and    all    other 
manufactures  woven  of  any  wool, 
flax,  silk,  cotton,  or  any  other  ma- 
terials   whatever;    all    kinds    of 
wearing  apparel,  together  with  the 
species  whereof  they  are  used  to 
be  made ;  gold  and  silver,  as  well 
coined  as  uncoined,  tin,  iron,  lat- 
ten.  copper,  brass,  coals;  as  also 
wheat  and  barley,  and  any  other 
kind  of  corn  and  pulse;  tobacco, 
and  likewise  alt  manner  of  spices ; 
salted  and   smoked   flesh,   salted 
fish,  cheese  and  butter,  beer,  oils, 
wines,   sugars,    and   all    sorts   of 
salts:   and    in   general   all   provi- 
sions which  serve  for  the  nourish- 
ment of  mankind  and  the  suste- 
nance   of    life;    furthermore,    all 
kinds  of  cotton,  hemp.  flax.  '  ir. 
pitch,    ropes,    cables,    sails,    sail- 
cloths, anchors  and  any  parts  of 
anchors,  also  ships'  masts,  planks, 
boards  and  beams  of  what  trees 
soever;     and    all     other    things 


fusees  et  autres  choses  y  relatives, 
boulets,  poudre  a  tirer,  meches, 
piques,  epees,  lances,  dards,  halle- 
bardes,  mortiers,  petards,  grena- 
des, salpetre,  fusiis,  balles,  bou- 
cliers,  casques,  cuirasses,  cote  de 
mailles,  et  autres  armes  de  cette 
espece,  propres  a  armer  les  sol- 
dats,  porte-mousqueton,  baudriers, 
chevaux  avec  leurs  equipages,  et 
tous  autres  instrumens  de  guerre 
quelconqucs.      Les    marchandises 
denommees  ci-apres  ne  seront  pas 
comprises   parmi    la   contrebande 
ou  choses  prohibees,  savoir:  toutes 
sortes  de  draps  et  toutes  autres 
etofFes  de  laine,  Hn,  soye,  coton  ou 
d'autres     matteres     quelconques ; 
toutes  so.tes  de  vetemens  avec  les 
etoffes  dont  on  a  coutume  de  les 
faire,  I'or  et  I'argent  monnoie  ou 
non.  retain,  le  fer.  laiton.  cuivre. 
airain.  charbons,  de  meme  que  le 
froment  et  I'orge,  et  toute  autre 
sorte  de  bleds  et  legumes ;  le  talmc 
et  toutes  les  sortes  d  epicerics,  la 
viandc    salee    et    fumee,    poisson 
salU".    froniage  et   beurre.  bierrc, 
hiiiles,  vins,  sucres.  et  toute  espece 
dt  sel.  et  en  general  toutes  provi- 
sions servant  pour  la  nourriture 
de  riinnmic  et  pour  le  souticn  He 
la  vie.     De  plus,  toutes  sortes  He 
coton,   do  chanvre,   lin,  froudron, 
poix,  cordes,  cables,  voiles,  toilcs 
a  voiles,  ancres,  parties  d'ancres. 
mats,  planches,  madrit/s,  et  hois 
de  toute  espece.  et  toutes  autres 
choses  propres  a  la  construciion  et 


TREATY  OF  AMITY  AND  COMMERCE.  1778 


proper  either  for  building  or  re- 
pairing ships,  and  all  other  goods 
whatever   which   have   not    been 
worked  into  the  form  of  any  in- 
strument or  thing  prepared   for 
war  by  land  or  by  sea,  shall  not 
be  reputed  contraband,  much  less 
such  as  have  been  already  wrought 
and  made  up  for  any  other  use ; 
all  which  shall  be  wholly  reckoned 
among  free  goods ;  as  likewise  all 
other    merchandizes    and    things 
which  are  not  comprehended  and 
particularly  mentioned  in  tne  fore- 
going enumeration  of  contraband 
goods ;  so  that  they  may  be  trans- 
ported and  carried  in  the  freest 
manner  by  the  subjects  of  both 
confederates,  even  to  places  be- 
longing to  an  enemy,  such  towns 
or  places  being  only  excepted  as 
are  at  that  time  besieged,  blocked 
up,  or  invested. 


461 


Article  XXV 

To  the  end  that  all  manner  of 
dissentions  and  quarrels  may  be 
avoided   and   prevented,   on   one 
side  and  the  other,  it  is  agreed 
that  in  case  either  of  the  parties 
hereto  should  be  engaged  in  war. 
the  ships  and  vessels  belonging  to 
the  subjects  or  people  of  the  other 
ally  must  be  furnished  with  sea- 
letters    or    passports,    expressing 
the  name,  property  and  bulk  of 
the  ship,   as  also  the   name   and 
place  of  habitation  of  the  master 


reparation  des  vaisseaux,  et  autres 
matieres    quelconques    qui    n'ont 
pas  la  forme  dun  instrument  pre- 
pare pour  la  guerre  par  terre  com- 
me  par  mer.  ne  seront  pas  re- 
putees    contrebande,     et     encore 
moins  celles  qui  sont  deja  prepa- 
rees   pour   quelqu'   autre    usage: 
Toutes  )es  choses  denommees  ci 
dessus,    doivent    etre    comprises 
parmi  les  marchandises  libres,  de 
meme  que  toutes  les  autres  mar- 
chandises et  effets  qui  ne  sont  pas 
compris  et  particulierement  nom- 
mes  dans  lenumeration  des  mar- 
chandises d    contrebande ;  de  ma- 
niere  qu'elles  pourront  etre  trans- 
portees  et  conduites  de  la  m.aniere 
la  plus  libre.  par  les  sujets  des 
deux  parties   contractantes,   dans 
des  places  ennemies.  a  {'exception 
neanmoins  de  celles  qui  se  trouve- 
roient  actuellement  assiegees.  blo- 
quees  ou  investies. 

Article  XXV 

Afin  d'ecarter  et  de  prevenir  de 
part  ct  dautre  toutes  discussions 
et  querelles,  il  a  ete  convenu  que 
dans  le  cas  ou  I'une  des  deux  par- 
ties  se    trouveroit    engagee    dans 
une  guerre,  les  vaisseaux  et  bati- 
nu-n's   apartenans   aux    sujets    ou 
peuple    de    I'autre   allie.    devront 
etre  pourvus  de  lettres  de  mer  ou 
pass(.j>orts.  les  quels  exprimeront 
le  nom.  la  propriete  et  le  port  du 
navirc.  ainsi  que  !e  nom  et  la  de- 
nicun-  (III  m.iitre  nu  cdnimandant 


462   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


m 


or  commander  of  the  said  ship, 
tliat  it  may  appear  thereby  that 
the  ship  really  and  truely  belongs 
to  the  subjects  of  one  of  the  par- 
ties, which  passport  shall  be  made 
out  and  granted  according  to  the 
form  annexed  to  this  treaty ;  they 
shall  likewise  be  recalled  every 
year,  that  is,  if  the  ship  happens 
to  return  home  within  the  space 
of  a  year.  It  is  likewise  agreed 
that  such  ships  being  laden  are 
to  be  provided  not  only  with  pass- 
ports as  above  mentioned,  but  also 
with  certificates,  containing  the 
several  particulars  of  the  cargo, 
the  place  whence  the  ship  sailed, 
and  whither  she  is  bound,  that  so 
it  may  be  known  whether  any  for- 
bidden or  contraband  goods  be  on 
board  the  same ;  which  certificates 
shall  be  made  out  by  the  officers 
of  the  place  whence  the  ship  set 
sail,  in  the  accustomed  form ;  and 
if  any  one  shall  think  it  fit  or  ad- 
visable to  express  in  the  said  cer- 
tificates the  person  to  wiiom  the 
goods  on  board  belong,  he  may 
freely  do  so. 


du  dit  vaisseau,  afin  qu'il  aparoisse 
par  la  que  le  meme  vaisseau  apar- 
tient   reellement  et  veritablement 
aux  sujets  de  I'une  des  deux  par- 
ties  contractantes ;   lequel    passe- 
port  devra  etre  expedie  selon  lo 
modele  annexe  au  present  traitc. 
Ces  passeports  devront  egalement 
etre    renouvelles    chaque    annee, 
dans  le  cas  ou  le  vaisseau  retourne 
chez  lui  dans  I'espace  d'une  aniiec. 
II  a  ete  convenu  egalement  que  Us 
vaisseaux  susmentionnes,  dans  le 
cas  ou  ils  seroient  charges,  devront 
etre    pourvus    non    seulement    dc 
passeports,  mais  aussi  de  certifi- 
cats,  contenant  le  detail  de  la  car- 
gaison,  le  lieu  d'oii  le  vaisseau  e>t 
parti,  et  la  declaration  des  niar- 
chandises     de     contrebande     qui 
pourroient  se  trr.uver  abord ;  les- 
quels  certificats  devront  etre  cx- 
pedies  dans  la  forme  accoutumce 
par   les  officiers   du  lieu   d'ni'i  le 
vaisseau   aura    fait    voile:    et    sil 
etoit  juge  utile  oti  prudent  d'cx- 
primer  dans  les  dits  passeports.  la 
personne  a  laquelle  les  marchan- 
dises   apartiennent,  on   pourra   le 
faire  librement. 


ARTicr.F,  XXVI 

The  ships  of  the  subjects  and 
inhabitants  of  either  of  the  par- 
ties coming  upon  any  coasts  be- 
longing to  either  of  the  said  allies, 
but  not  willing  to  enter  into  port, 
or  being  entered  into  port  and  not 
willing  to  unload  their  cargoes  or 


Article  XXVI 

Dans  le  cas  ou  les  vaisseaux  (\c< 
sujets  ot  habitans  de  Tune  des 
deux  parties  contractantes  apro- 
cheroient  des  cotes  de  I'autre,  sans 
cependant  avoir  le  dessein  d'entrer 
dans  le  ])ort,  ou  aprcs  etre  entrc. 
sans  avoir  le  dessein  de  dechartrer 


TREATV  OF  AMITY  AND  COMMERCE,  1778 


break  bulk,  they  shall  be  treated 
according  to  the  general  rules  pre- 
scribed or  to  be  prescribed  rela- 
tive to  the  object  in  question. 


Article  XXVII 

If  the  ships  of  the  said  subjects, 
people  or  inhabitants  of  eitiier  of 
the    parties    shall    be    met    with, 
either  sailing  along  the  coasts  or 
on  the  high  seas,  by  any  ship  of 
war  cf  the  other,  or  by  any  pri- 
vateers, the  said  ships  of  war  or 
privateers,  for  the  avoiding  of  any 
disorder,    shall     remain    out    of 
cannon-shot,  and  may  send  their 
boats  aboard   the    merchant   ship 
which  they  shall  so  meet  with,  and 
may  enter  her  to  number  of  two 
or  tliree  men  only,  to  whom  the 
master  or  commander  of  such  ship 
or  vessel  shall  exhibit  his  passport 
concerning    the    property    of    the 
ship,  made  out  according  to  the 
form    inserted    in    this    present 
treaty,   and   tlie    ship,   when    she 
shall  have  showed  such  passport, 
siiall   be    free   and   at   liberty   to 
pursue  her  voyage,  so  as  it  shall 
not  be  lawful  to  molest  or  search 
lier  in  any  manner,  or  to  give  her 
chase  or  force  her  to  quit  her  in- 
tended course. 


-163 

la  cargaison,  ou  rompre  leur 
charge,  on  se  conduira  a  leur 
egard  suivant  les  reglemens  gene- 
raux  prescrits  ou  a  prescrire  rela- 
tivement  a  lobjet  dont  il  est  ques- 
tion. 

Artici  i,  XXVJI 

Losqu'un    bailment    apartenant 

aux  d>ts  sujets,  peuple  et  habitans 
de  I  un-  des  deux  parties,  sera  ren- 
contre t.avigant  le  long  des  cotes 
ou  en  pleiae  mer,  par  un  vaisseau 
de  guerre  c'e  lautre,  ou  par  un  ar- 
mateur.  le  dit  vaisseau  de  guerre 
ou    armateur,    afin    deviter    tout 
desordre.   se    tiendra   hors   de   la 
portee   du   canon,   et   pourra   en- 
voier  sa  chaloupe  abord  du  bati- 
ment  marchand,  et  y  faire  entrer 
deux  ou  trois  hommes,  aux  quels 
le  maitre  ou  commandant  du  bati- 
ment  montrera  son  passeport    le 
quel  devra  etre  conforme  a  la  for- 
mule  annexee  au  present  traite  et 
constatera   la   propriete   du   bati- 

mentretapresqueleditbatiment 
aura  exhibe  un  pareil  passeport  il 
lui  sera  libre  de  continiier  son 
vo.age,  et  il  ne  sera  pas  permis 
de  le  molester,  ni  de  chercher  en 
aucune  maniere,  de  lui  donner  la 
chasse.  ou  de  le  forcer  de  quiter 
la  course  qu'il  s'etoit  proposee 


ARTICt.F.  XXVIII 

.\RTia.F:  XXVIII 

't  is  also  agreed  that  all  ^ood*;  Ti  <,-» 

wlK-n  once  put  on  board  the'':h->^'     n.d  a  r""'""  '^""''"^^"^  ''' 

■'"I's      "iarclmndi>es  anront  ete  char-reos 


464  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


or  vessels  of  either  of  the  two 
contracting  parties,  shall  be  sub- 
ject to  no  farther  visitation;  but 
all  visitation  or  search  shall  be 
made  beforehand,  and  all  prohib- 
ited goods  shall  be  stopped  on  the 
spot,  before  the  same  be  put  on 
board,  unless  there  are  manifest 
tokens  or  proofs  of  fraudulent 
practice;  nor  shall  either  the  per- 
sons or  goods  of  the  subjects  of 
His  Most  Christian  Majesty  or 
the  United  States  be  put  under 
any  arrest  or  molested  by  any 
other  kind  of  embargo  for  that 
cause;  and  only  the  subject  of 
that  State  to  whom  the  said  goods 
have  been  or  shall  be  prohibited, 
and  who  shall  presume  to  sell  or 
alienate  such  sort  of  goods,  shall 
be  duly  punished  for  the  offence. 


Article  XXIX 

The  two  contracting  parties 
grant  mutually  the  liberty  of  hav- 
ing each  in  the  ports  of  the  other 
Consuls.  Vice-Consuls,  agents, 
and  commissaries,  whose  func- 
tions shall  be  regulated  by  a  par- 
ticular agreement. 


sur  les  vaisseaux  ou  batimens  de 
Tune  des  deux  parties  contractan- 
tes,  elles  ne  pourront  plus  etre  as- 
sujeties  a  aucune  visite;  toute 
visite  et  recherche  devant  etre 
faite  avant  le  chargement,  et  les 
marchandises  prohibees  devant 
etre  arretees  et  saisies  sur  la  plage 
avant  de  pouvoir  etre  embarquees. 
a  moins  qu'on  n'ait  des  indices 
manifestes  ou  des  preuves  de 
versements  frauduleux.  De  meme 
aucun  des  sujets  de  sa  Majeste 
tres  Chretienne  ou  des  Etats  Unis, 
ni  leurs  marchandises,  ne  pourront 
etre  arretes  ni  molestes  pour  cette 
cause,  par  aucune  espece  d'embar- 
go;  et  les  seuls  sujets  de  I'etat. 
auxqueb  les  d».  marchandises 
auront  ete  prohibees,  et  qui  se  se- 
ront  emancipes  a  vendre  et  alienor 
de  pareilles  marchandises,  seront 
diiement  punis  pour  cette  contra- 
vention. 

Article  XXIX 

Les  deux  parties  contractantes 
se  sont  accordees  mutuellement  la 
faculte  de  tenir  dans  leurs  ports 
respectifs,  des  consuls,  vice-con- 
suls, agents  et  commissaires,  dont 
les  fonctions  seront  reglees  par 
une  convention  particuliere. 


Article  XXX 

And  the  more  to  favour  and 
facilitate  the  commerce  v,  ^'  'i  the 
subjects  of  the  United  Statt «  may 
have  with  France,  the  Most  Chris- 


Article  XXX 

Pour  d'autant  plus  favoriscr  et 
faciliter  le  commerce  que  les  su- 
jets des  Etats  Unis  feront  avec  la 
France,  le  Roi  tres  Chretien  lenr 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


tian  King  will  grant  them  in 
Europe  one  or  more  free  ports, 
where  they  may  bring  and  dispose 
of  all  the  produce  and  merchan- 
di-;e  of  the  thirteen  United  States ; 
and  His  Majesty  will  also  con- 
tinue to  the  subjects  of  the  said 
States  the  free  ports  which  have 
been  and  are  optn  in  the  French 
islands  of  America;  of  all  which 
free  ports  the  said  subjects  of  the 
United  States  shall  enjoy  the  use. 
agreeable  to  the  regulations  which 
relate  to  them. 

Article  XXXI 

The  present  treaty  shall  be  rati- 
fied on  both  sides,  and  the  ratifica- 
tions shall  be  exchanged  in  the 
space  of  six  months,  or  sooner  if 
possible. 

In  faith  whereof  the  respective 
Plenipotentiaries  have  signed  the 
above  articles,  both  in  the  French 
and  English  languages,  declaring, 
nevertheless,  that  the  present 
treaty  was  originally  composed 
and  concluded  in  the  French  lan- 
guage, and  they  have  thereto 
affixed  their  seals. 

Done  at  Par.,  this  sixth  day  of 
February,  one  thousand  seven 
hundred  and  sevrntv-eight. 

C.  A.  Grrakd.  fi .  s. I 
R.  Fr.*nkli\.  [l.  s] 
Sir.As  Dea.ne,  [l.  s.] 
Arthi'r  I.re.    fi..  si 


465 

accordera  en  Europe  un  ou  plu- 
sieurs  ports  Francs  dans  lesquels 
ils    pourront    amener    et    debiter 
toutes  les  denrees  et  marchandises 
provenant  des  treize  Etats  Unis; 
sa  Majeste  conservera  d'un  autre 
cote,  aux  sujets  des  dits  Etats.  les 
ports  Francs  qui  ont  ete,  et  sont 
ouverts  dans  les  isles  Francoises 
de  r.Vnierique.    De  tous  les  quels 
ports   Francs  les   dits  sujets   des 
Etats  Unis  jouiront  conformement 
aux  reglemens  qui  en  determinent 
1 'usage. 

Article  XXXI 

Le  present  traite  sera  ratifie  de 
part  et  d'autre,  et  les  ratifications 
seront  echangees  dans  Tespace  de 
six  mois  ou  plustot  si  faire  se  peut. 

In  foi  de  quoi  les  Plenipoten- 
tiaires  re.spectifs  ont  signe  les  arti- 
cles ci-dessus,  tant  en  langue 
Franqoise  qu'en  langue  Angloise, 
declarant  neanmoins  que  le  pre- 
sent traite  a  ete  originairement 
redige  et  arrete  en  langue  Fran- 
Coise ;  et  ils  y  ont  appose  le  cachet 
de  leurs  armes. 

Fait  a  Paris,  le  sixieme  jour  du 
mois  de  Fevrier,  mil  sept  cent 
soi.Nantp  dix-huit. 

C.  .\.  GrRARn.  [l.  s.  I 
R.  Franklin,  [l.  s.] 
Silas  Deane,  [l.  s.j 
.Artiur  Lee.    fr..  s.] 


i 


466  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 

Treaty  of  Alliance,  February  6,  1778' 

Concluded  February  6,  1778;  Ratified  by  the  Continental  Congress 

^ay  4,  ijj8;  Rattficattons  exchanged  at  Paris  July  17,  1778 

Le  Roi  tres  Chretien  et  les  Htats 
Unis   de    TAinerique    Septentrio- 
nale,   favoir,   New-Hampsliire,   la 
Baye    de     Massacliuset,     Rhode- 
Island,    Connecticut,    New-Vo-k, 
New->rsey,    Pensylvania,    Dela- 
ware.  Maryland,   Virgini  •,   Caro- 
line Septentrionale,  Caroline  Me- 
ridionale,  et  Georgia ;  ayant  con- 
clu  ce  jourd'huy  un  traite  d'aniitie, 
de  bonne  intelligence   n  de  com- 
merce, pour  I'avantage  reciproque 
de  leuis  sujets  et  citoyen^,  ils  ont 
cru  devoir  prendre  en  considera- 
tion, les  moyens  de  refferrer  leui-. 
liaisons,  et  de  les  rendre  utiles  a 
la  surete  et  a  la  tranquilite  des 
deux  parties,  notament  dans  le  cas 
oil  la  Grande  Bretagne,  en  haine 
de   ces   memes  liaisons   et  de   la 
bonne  correspondance  qui  forment 
I'objet  du  dit  traite,  se  porteroit 
a  rompre  la  paix  avec  la  France, 
soil    en    I'attaquant    hostilement, 
soit  en  troublant  son  commerce, 
et   sa   navigation,   d'une   maniero 
contraire  au  droit  des  jjens  et  ;i 
la  paix  subsistante  entre  les  deux 
couronnes:  Et  sa  Majeste  et  les 
dits  Etats  Unis  ayant  resolu  even- 
tuellenient  d'unir.  dans  le  cas  pre- 
vu.  leurs  conseils  et  leurs  efforts 
contre  les  cntreprises  de  lenr  en- 


The  Most  Christian  King  and 
the  United  States  of  North  Amer- 
ica,   to    wit:    New    Hampshire, 
Massachusetts  Bay,  Rhode  Island, 
Connecticut,     New     York,     New 
Jersey,    Pennsylvania,    Delaware, 
Maryland.  Virginia,  North  Caro- 
lina, South  Carolina,  and  Georgia, 
having  this  day  concluded  a  treaty 
of  amity  and  commerce,  for  the 
reciprocal  advantage  of  their  sub- 
jects and  citizens,  have  thought  it 
necessary  to   take   into  consider- 
ation the  means  of  strengthening 
those  engagements,  and  of  render- 
ing them  useful  to  the  safety  and 
tranquillity   of    the    two   parties; 
particularly  in  case  Great  Britain, 
in  resentment  of  that  connection 
and  of  the  good  correspondence 
which   is  the  object  of   the   said 
treaty,    should    break    the    peace 
with  France,  either  by  direct  hos- 
tilities, or  by  hindering  her  com- 
merce and  navigation  in  a  manner 
contrary  to  the  rights  of  nations, 
and  the  peace  subsisting  between 
the  two  Crowns.     And  His  Maj- 
esty and  the  said  United  States, 
having   resolved   in   that   case   to 
join    their    councels    and    efforts 
against    the   enterprises    of    their 
common    enemy,    the    respective 


'S  Stat,  L.  6;  18  Slat.  L.  pt.  2,  p.  201;  Treaties  and  Conventions.  1889,  p.  307. 


TREATY  OF  ALLIANCE,  1778 


467 


Plenipotentiaries  inipowered  to 
concert  the  clauses  and  conditions 
proper  to  fulfil  the  said  intentions, 
have,  after  the  most  mature  de- 
liberation, concluded  and  deter- 
mined on  the  following  articles : 


Article  I 

If    war    should   break   out   be- 
tween France  and  Great  Britain 
during    the    continuance    of    the 
present  war  between  the  United 
States  and  England,  His  Majesty 
and  the  said  United  States  shall 
make  it  a  common  cause  and  aid 
each    other    mutually    with    their 
good   offices,   their   counsels   and 
their  forces,  according  to  the  exi- 
gence of  conjunctures,  as  becomes 
good  and  faithful  allies. 


nemi  commun,  les  plenipoten- 
tiaires  respectifs,  charges  de  con- 
certer  les  clauses  et  conditions 
propres  a  remplir  leurs  intentions, 
ont,  apres  la  plus  mure  delibera- 
tion conclu  et  arreste  les  points  et 
articles  qui  s'ensuivent. 

Article  I 

Si  la  guerre  eclate  entre  la 
France  et  la  Grande  Bretagne. 
pendant  la  duree  de  la  guerre  ac- 
t..  lie  entre  les  Etats  Unis  et 
lAngleterre,  sa  Majeste  et  les  dits 
Etats  Unis  seront  cause  com- 
mune et  s'entr'aideront  mutuelle- 
ment  de  leurs  bons  offices,  de 
leurs  conseils  et  de  leurs  forces, 
selon  I'exigence  dcs  conjonctures,' 
ainsy  qu'il  convient  a  de  bons  et 
fideles  allies. 


^•'"^^E  "  Article  II 

The  essential  and  direct  end  of         Le  but  essent,,^  et  direct  de  la 

the  present  defensive  alliance   is  pre.,ente  allianc-  ^Urfen. 

to  niamtam  effectually  the  libertv.  maintenir  effi,       mrn-  ' 

sovereigntys.     and     independance  la  souverainet.    et  I' 

absolute  and  unlimited,  of  the  said  ahsolue  et  iilimi,,.,.  He- 

Ln.ted  States,  as  well  in  matters  Unis.    tant    en    ,„-n, 

of  government  as  of  commerce.  que  de  c  .,n.nerce  ^ 


est  de 

iherte, 

■ndaiice 

>  Etat-, 

litique 


Article  III 


.\ktici.f.  ] 


The    two    contractmg    parties         F.es  denx  ,,artie>  c,„. 

hall  each  on  Us  own  part,  and  in  feront  chacu.u.  de  le„r  o 

the   manner   ,t   may   judge    most  la  nu.niere  ...reMes   ,„•■.. 

proper,  make  all  the  efforts  in  its  eonvenal.le.  In,,    le     eff  -- 

power  agamst  their  common  ene-  sen,,,,    en    leur    pouvoir     , 


f  ; 


468  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


my,  in  order  to  attain  the  end  pro- 
posed. 

Article  IV 

The   contracting   parties   agree 
that  in  case  either  of  them  should 
form  any  particular  enterprise  in 
which    the    concurrence    of    the 
other  may  be  desired,  the  party 
whose    concurrence     is     desired, 
shall  readily,  and  with  good  faith, 
join  to  act  in  concert  for  that  pur- 
pose, as  far  as  circumstances  and 
its   own  particular  situation   will 
permit;   and    in   that   case,    th  y 
shall  regulate,  by  a  particular  con- 
vention, the  quantity  and  kinc'  of 
succour  to  be  furnished,  and  the 
time    and    manner   of    its    being 
brought  into  action,  as  well  as  the 
advantages   which   are   to   be    its 
compensation. 

Article  V 

If  the  United  States  should 
think  fit  to  attempt  the  reduction 
of  the  British  power,  remaining 
in  the  northern  parts  of  America, 
or  the  i.slands  of  Bermudas,  those 
countries  or  islands,  in  case  of 
success,  shall  be  confederated  with 
or  dependant  upon  the  said  Uni- 
ted States. 

.\rticle  VI 

The  Most  Christian  King  re- 
nounces forever  the  possession  of 
the  islands  of  Bermudas,  as  well 
as  of  any  part  of  the  continent  of 


leur  ennenii  commun,  afin  d'at- 
teindre  au  but  qu'elles  se  propo- 
sent. 

Article  IV 

Les  parties   contractantes   sont 
convenues    que    dans    le    cas    on 
I'une  d'entre  elles  formeroit  qutl- 
qu'    entreprise    particuliere,    pour 
laquelle    elle    desireroit    le    con- 
cours  de  I'autre,  celle-ci,  se  pre- 
teroit  de  bonne  foi  a  un  concert 
sur  cet  objet,  autant  que  les  cir- 
constances  et  sa  propre  situation 
pourront  le  lui  permettre,  et  dans 
ce  cas,  on  reglera,  par  une  con- 
vention particuliere,  la  portee  des 
secours  a  fournir,  et  le  tems  et  la 
maniere   de    le    faire   agir,   ainsy 
que   les  avantages  destines  a  en 
former  la  compensation. 


Article  V 

Si  les  Etats  Unis  jugent  a  pro- 
pos  de  tenter  la  reduction  des  isles 
Bernuides  et  des  parties  septen- 
trionales  de  rAineriquc,  qui  sont 
encore  au  pouvoir  de  la  Grande 
Bretagne,  les  dites  isles  et  con- 
trees,  en  cas  de  succes,  entreront 
dans  la  confederation  ou  seront 
dependantes  des  dits  Etats  Uiii>. 

Article  VI 

Le  Roi  tres  Chretien  renonce  a 
posseder  jamais  les  Berniutles,  ni 
aucune  des  parties  du  continent 
de  r.^merique  septentrionale.  qui, 


TREATY  OF  ALLIANCE,  1778 


North  America,  which  before  the 
treaty  of  Paris  in  1763,  or  in  vir- 
tue of  that  treaty,  were  acknowl- 
edged to  belong  to  the  Crown  of 
Great  Britain,  or  to  the  United 
States,  heretofore  called  British 
Colonies,  or  which  are  at  this 
time,  or  have  lately  been  under 
the  power  of  the  King  and  Crown 
of  Great  Britain. 

Article  VII 

If  His  Most  Christian  Majesty 
shall  think  proper  to  attack  any 
of  the  islands  situated  in  the 
Gulph  of  Mexico,  or  near  that 
Gulph,  which  are  at  present  under 
the  power  of  Great  Britain,  all 
the  said  isles,  in  case  of  success, 
shall  appertain  to  the  Crown  of 
France. 

Article  VIII 

Neither  of  the  two  parties  shall 
conclude  either  truce  or  peace 
with  Great  Britain  without  the 
formal  consent  of  the  other  first 
obtained;  and  they  mutually  en- 
gage not  to  lay  down  their  arms 
until  the  independence  of  the 
United  States  shall  ha\e  been  for- 
mally or  tacitly  assured  bv  the 
treaty  or  treaties  that  shall  ter- 
minate the  war. 

Article  IX 


469 

avant  le  traite  de  Paris  de  mil 
sept  cent  soixante  trois,  ou  en 
vertu  de  ce  traite,  ont  ete  recon- 
nues  appartenir  a  la  couronne  de 
la  Grande  Bretagne,  ou  aux  Etats 
Unis.  qu'on  appelloit  ci-devant 
colonies  Britanniques,  ou  qui  sont 
maintenant,  ou  ont  ete  recemment 
sous  la  jurisdiction  et  sous  le 
pouvoir  de  la  couronne  de  la 
Grande  Bretagne. 

Article  VII 

S-  sa  Majeste  tres  Chretienne 
juge  a  propos  d'attaquer  aucune 
des  isles  situees  dans  le  gclphe  de 
Mexique  ou  pres  du  dit  golphe, 
qui  sont  actuellement  au  pouvoir 
de  la  Grande  Bretagne.  toutes  les 
dites  isles,  en  cas  de  succes,  ap- 
partiendront  a  la  couronne  de 
France. 

Article  VIII 

Aucune  des  deux  parties  ne 
pourra  conclure  ni  treve  ni  paix 
avec  la  Grande  Bretagne,  sans  le 
consentement  prealablc  et  formel 
de  I'autre  partie.  et  elles  s'en- 
gagent  mutuellement  a  ne  mettre 
has  les  amies,  que  lorsque  I'in- 
dependancc  des  dits  Etats  Unis 
aura  etc  assuree  formellement  ou 
tacitement  par  Ic  traite  ou  les 
traites  qui  termineront  la  guerre. 

Article  IX 


The  comracting  parties  declare.         Les    parties    contractantes    de- 
that  be.ng  resolved  to  fulfil  each     clarent.  qu'etant  resolues  de  reni- 


im: 


470  TREATIES  BETWEEN  THE  UNIl  FD  STATES  AND  FRANCE 


on  its  own  part  the  clauses  and 
conditions  of  the  present  treaty  of 
alliance,  according  to  its  own 
power  and  circumstances,  there 
shall  be  no  after  claim  of  compen- 
sation on  one  side  or  the  other, 
whatever  may  be  the  event  of  the 
war. 

Article  X 

The  Most  Christian  King  and 
the  United  States  agree  to  invite 
or  admit  other  powers  wiio  may 
have  received  injuries  from  Eng- 
land, to  make  common  cause  with 
them,  and  to  accede  to  the  present 
alliance,  under  such  conditions  as 
shall  be  freely  ai;reed  to  and  set- 
tled between  ali  the  parties. 


Article  .\I 

1  he  two  parties  guarantee  mu- 
tually from  the  present  time  and 
forever  against  all  other  powers, 
to  wit :  The  United  .States  to  His 
Most  C  hrisfian  Majesty,  the  pres- 
ent possessions  of  the  Crown  of 
France  in  America,  as  well  as 
those  which  it  may  acquire  by  the 
future  treaty  of  peace:  And  His 
Most  Christian  Majesty  guaran- 
tees on  his  part  to  the  United 
States  their  liberty,  sovereignty 
and  independence,  absolute  and 
unlimited,  as  well  in  matters  of 
government  a*  commerce,  and 
also  tluir  possessions,  and  the  ad- 


plir  chacune  de  son  cote  les  clau- 
ses et  conditions  du  present 
traite  d'alliance  selon  son  pouvoir 
et  les  circonstances,  elles  n'auront 
aucune  repetition,  ni  aucun  de- 
dommagement,  a  se  demander  re- 
ciproquement,  quelque  puisse  etre 
I'evenement  de  la  guerre. 

Article  X 

I.e  Roi  tres  Chretien  et  Its 
Etats  Unis  sont  convenus  d'in- 
viter  de  concert  ou  d'admettre 
les  puissances,  qui  auront  dis 
griefs  contre  I'Angleterre.  a  faire 
cause  commune  avec  eux.  et  a 
acceder  a  la  presente  alliance, 
sous  les  conditions  qui  scroni 
librement  agrees  et  convoluted 
entre  toutes  les  parties. 


.'\rticle  XI 

Les  deux  parties  se  garantis- 
sent  mutuellement  des  a  present 
et  pour  toujours  envers  et  coutre 
tons,  savfiir,  les  Etats  L'liis  A  >,i 
Majeste  tres  Chretienne  les  j)o.- 
sessions  actuelles  de  la  cournniK 
de  r-"nince  en  .\merique.  aiiisv 
(|iie  celles  (|u'elle  pourra  acqiurir 
par  le  futur  traite  (k  pai.x  :  ]'.t  sa 
M.ijesfe  tres  Chretienne.  i;araiitii 
<le  son  cote  aux  Etats  Unis  Ictir 
liberte.  letir  souverainete  et  Ictir 
independance  absniue  et  illiinite', 
tant  en  matiere  de  |)olitiqnc  (|iic 
de  commerce,  aitvsy  que  leurs  pos- 
sessions et  les  accroissemenis  ou 


TREATY  OF  ALLIANCE,  1778 


471 


ditions  or  conquests  that  their 
confederation  niay  obtain  during 
the  war,  from  any  of  the  domin- 
ions now,  or  heretofore  possessed 
by  Great  Britain  in  North  Amer- 
ica, conformable  to  tlie  5th  and 
6th  articles  above  written,  the 
whole  as  their  possessions  shall 
be  fixed  and  assured  to  the  said 
States,  at  the  moment  of  the  ces- 
sation of  their  present  war  with 
England. 

Article  XII 

In  order  to  fix  more  precisely 
the  sense  and  application  of  the 
preceding  article,  the  contracting 
parties  declare,  that  in  case  of  a 
rupture  between  France  and  luig- 
land  the  reciprocal  guarantee  dc- 
dartd  in  the  said  article  shall  have 
its  full  force  and  effect  the  mo- 
ment such  war  shall  break  out; 
and  if  such  rupture  shall  not  take 
place,  the  mutual  obligations  of 
the  said  guarantee  shall  not  com- 
mence until  the  moment  of  the 
cessation  of  the  present  war  be- 
tween the  United  States  and  Eng- 
land shall  have  ascertained  their 
possessions. 


conquetes  que  leur  confederation 
pourra  se  procurer  pendant  la 
guerre,  d'aucun  des  domaines 
maintenant  ou  ci-devant  possedes 
oar  la  Grande  Bretagne  dans 
TAmerique  septentrionale,  con- 
formement  aux  articles  cinq  et  six 
ci-dessus.  et  tout  ainsy  que  leurs 
possessions  seront  fixees  et  assu- 
rees  aux  dits  Etats.  au  moment  dc 
la  cessation  de  leur  guerre  actuelle 
contre  I'Angleterre. 

Article  XII 

A  fin  de  fixer  plus  precisement 
le  sens  et  lapplication  de  larticle 
precedent,  lis  parties  contractan- 
tcs  declarent  qu'en  cas  de  rupture 
entre  la  France  et  I'Angleterre,  la 
garantie  reciproque  enoncee  dans 
le  susdit  article,  aura  toutc  sa 
force  et  valeur  du  moment  oii 
la  guerre  cclatera,  et  si  la  rupture 
navoit  pas  lieu.  les  obligations 
mutuelles  de  la  ditte  garantie,  ne 
commenceroient.  que  du  moment 
susdit,  oil  la  cessation  de  la  guerre 
actuelle  entre  les  Etats  Unis  et 
lAngleterre  aura  fixe  leurs  pos- 
sessions. 


i   I 


Articlk  XIII 

The  present  treaty  shall  be  rati- 
fied on  lM)th  sides,  and  the  ratifi- 
cations shall  be  exchanged  in  the 
space  of  six  months,  or  sooner  if 

possible. 


Aktiii.f  XIII 

I.e  present  fraite  sera  ratiffie 
de  part  et  dautre  et  les  ratiffica- 
tions  senmt  echangees  dans  I'es- 
pace   de    six    mois   ou    plustot   si 

f;iir,'  -e  pent 


i 


472   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


i 


In  faith  whereof  the  respective 
Plenipotentiaries,  to  wit:  On  the 
part  of  the  Most  Christian  King, 
Conrad  Alexander  Gerard,  Royal 
byndic  of  the  city  of  Strasbourgh, 
and  Secretary  of  his  Majesty's 
Council  of  State ;  and  on  the  part 
of  the  United  States,  Benjamin 
Franklin,  Deputy  to  the  General 
Congress  from  the  State  of  Penn- 
sylvania, and  President  of  the 
Convention  of  the  same  State, 
Silas  Deane,  heretofore  Deputy 
from  the  State  of  Connecticut, 
and  Arthur  Lee,  Councellor  at 
I -aw,  have  signed  the  above  arti- 
cles both  in  the  French  and  Eng- 
lish languages,  declaring,  never- 
theless, that  the  present  treaty 
was  originally  composed  and  con- 
cluded in  the  French  language, 
and  they  have  hereunto  affixed 
their  seals. 

Done  at  Paris,  this  sixth  day  of 
Fi't)ruary.  one  thousand  seven 
luiiidrcd  and  seventy-eight. 

C.  .\.  (il-W.'LKI).      (l..  .S.  I 

H.  P'rankl'n.  |l.  s.] 
Silas  Dkanf.,  [l.  s.] 
Artih-r  I.i-r     1 1,,  s.] 


Eji  foi  de  quoi  les  plenipoten- 
tiaires    respectifs,    savoir,    de    la 
part  du  Roi  tres  Chretien  le  S'. 
Conrad,   Alexandre  Gerard,  Sin- 
die  Royal  de  la  Ville  de  Stras- 
bourg   et    Secretaire    du    Conseil 
d'Etat  de  sa  Majeste,  et  de  la  part 
des  Etats  Unis  les  S".  Benjamin 
Franklin,  Depute  au  Congres  Ge- 
neral de  la  part  de  I'etat  de  Pen- 
sylvanie  et  President  de  la  Con- 
vention    du     meme     etat;     Silts 
Deane  cy-devant  Depute  de  I'etat 
de    Connecticut,    et    Arthur    I.tc 
Conscillcr  ts  Loix,  ont  signe  les 
articles  ci-dessus,  tant  en  lanu'ue 
Frantcoise  qu'en  langue  Angioisc. 
declarant  ncannioins,  que  le  pre- 
sent  traite,   a   ete  originairement 
redige  et  arrete  en  langue  Fran- 
Qoise.  et  ils  les  ont  munis  du  ca- 
chet de  leurs  armes. 

Fait  a  Paris,  le  sixieme  jour  du 
mois  de  Fevrier,  mil  sept  cent 
soixante  dix-huit, 

C.  A.  Gkrakp.  |i..  s] 
B.  Franklin,  [l.  s.) 
Silas  Dia.m:.  [l.  s.| 
.Aktiiir  l.ir.     [!,.  si 


CONSULAR  CONVENTION-  OF  1788  473 

Convention  Defining  and  Establishing  the  Functions  and  Privileges 
of  Consuls  and  Vice-Consuls' 

Concluded  November  14,  1788;  Ratifications  exchanged  at  Pari,  Jan- 
uary 6,  X790;  although  the  certificate  of  exchange  was  dated 
January  i,  ijgo 

Sa   Majeste  le  Roi  tres   Chre- 
tien, et  Ics  Etats  Unis  de  I'Ame- 
nque,   setant  accordes   inutuelle- 
ment  par  Tart.   XXIX.  du  traite 
daniitie   et   de   commerce   conclu 
entreux,  la  liberie  de  tenir  dans 
leurs  Etats  et  ports  respectifs.  des 
consuls,  et  vice-consuls,  agens  et 
coinmissaires.  et  voulant  en  con- 
sequence    determiner     et      fixer 
dune  maniere  reciproque  et  per- 
nianente.  les  fonctions  et  preroga- 
tivfv  des  consuls,  et  vice-consuls 
qu'ils  nnt  jugc  convenable  d'eta- 
blir    (If    preference,    sa    Majeste 
tres  Chretienne  a  nomme  le  Sieur 
Conite  de  Montmorin  de  St.  He- 
rent,   marechal   de   ses   camps   et 
armecs.  chevalier  de  ses  ordres  et 
de  la  tciison-d'or.  son  conseiller  en 
tous     ses     conseils.     ministre     et 
secretaire   d'etat   et   de    ses   com- 
mandements  et  finances,  aiant  le 
departenient    des    affaires    rtran- 
Ri-i-es;  et  les  Ftats  Tnis  ont  nom- 
nie    le    Sieur    Thomas    Jefferson, 
citoyen  des  Etats  I'nis  de  I'.Vme- 
rique.  et  leur  ministre  plenipoten- 
tiairc    aupres    du    Roi.    lesquels, 
apres     setre     C'lmmunique     leurs 
plein-pouvoirs  respectifs  snnt  cnn- 
vemt-;  de  re  (jui  suit. 


His   Majesty  the   Most   Chris- 
tian King,  and  the  United  States 
of  America,  having,  by  tiie  twen- 
ty-ninth article  of  the  treaty  of 
amity    and    commerce    concluded 
between   them,   mutually  granted 
the  liberty  of  having  in  their  re- 
spective States  and  ports,  Consuls, 
\ice-Consuls,    agents    and    com- 
missaries,  and   being   willing,    in 
consequence  thereof,  to  define  and 
establish,  in  a  reciprocal  and  per- 
manent manner,  the  function^,  and 
privileges  of    Consuls  and   Vice- 
Consuls,  which  they  have  judged 
it  convenient  to  establish  of  pref- 
erence. His  Most  Christian  Maj- 
esty   has    nominated    the    Sieur 
Count    of     Montmorin.    of     St. 
Herent,   Marechal  of   his  Camps 
and  Armies,  Knight  of  his  Orders 
and    of    the    Golden    Fleece,    his 
Counsellor    in    all    his    Councils. 
Minister  and  Secretary  of  State, 
and  of   his    Commandments   and 
Finances,  having  the  Department 
"t     Foreii,'n     Affairs;     and     the 
United  States  have  nominated  the 
S^ieur   Thomas    Jefferson,   citizen 
"f  the  United  States  of  America, 
.••nd  their  Minister  Plenipotentiary 
near  the  Kinp;  who.  after  \\v^\\\vi 


'S  .Stilt    L.  106;   IS  Stat    1      nt    •>    n    ^lo     r.      .■  i,- 

I'l-  1   .  pt^  -.  |i   _l'i.   Ii,  itiis,in,|  C  omciiliMiis  1H«<>.  p.  ,M(>. 


174  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 

communicated  to  each  other  their 
respective  full  powers,  have 
agreed  on  what  follows: 


hi 


Article  I 

The  Consuls  and  Vice-Consuls 
named  by  the  Most  Christian 
King  and  the  United  States  shall 
be  bound  to  present  their  commis- 
sions according  to  the  forms 
which  shall  be  established  respec- 
tively by  the  Most  Christian  King 
within  his  dominions,  and  by  the 
Congress  within  the  United 
States.  There  shall  be  delivered 
to  them,  without  any  charges,  the 
exequatur  necessary  for  the  exer- 
cise of  their  functions ;  and  on  ex- 
hibiting the  said  exequatur,  the 
governors,  commanders,  heads 
of  justice,  bodies  corporate,  tri- 
bunals and  other  officers  having 
authority  in  the  ports  and  places 
of  their  consulates,  shall  cause 
them  to  enjoy  immediately,  and 
w'thout  diflRculty.  the  pre-emi- 
nences, authority,  and  privileges 
reciprocally  granted,  without  ex- 
acting from  the  s.tid  Consuls  and 
\'ice-Cons'.ils  any  fee.  under  any 
pretext  whatever. 


Article  I 

Les     consuls     et     vice-consul.s 
nommes  par  le  Roi  tres  Chretien 
et  les  Etats  Unis  seront  tenus  de 
presenter  leurs  provisions  selon  la 
forme  qui  se  trouvera  etablie  res- 
pectivement  par  le  Roi  tres  Chre- 
tien   dans    ses    Etats,    et    par   le 
Congres  dans  les  Etats  Unis.    <  Mi 
leur  delivrera  sans  aucuns  fr.iix 
Vexequatur  necessaire  a  I'exercicc 
de  leurs  fonctions,  et  sur  I'exliihi- 
tion  qu'ils  feront  du  dit  r.n  ijini- 
tur.    les    gouvemeurs,    comninn- 
dants.  chefs  de  justice,  les  corp<. 
tribunaux  ou  autres  ofTiciers  aianf 
autorite   dans   les   ports   et   lirnx 
de   leurs   consulats.   les   v   fcnnif 
jouir  aussitot  et  sans  difficulfe  Ac- 
preeminences.    autorite    et    privi- 
leges    accordes     reciproquenient. 
sans  qu'ils  puis.sent  exiger  des  flit- 
consuls     et     vice-consuls     aucim 
droit   sous   aucun   pretexte   qncl- 
conque. 


Article  II 

The  Consuls  and  Vice-Consuls. 
and  persons  attached  to  their 
functions :  that  is  to  say.  their 
Chancellors  and  Secretaries, 
shall  enjoy  a  full  and  entire  ini- 
munitv    for    their    chanccrv.    and 


Articlk  it 

I^s  consrls  et  vice-cnnsiiN  it 
les  personncs  attachees  a  li  iir- 
fonctions,  savoir.  leurs  clirmcc- 
liers  et  secretaires,  jouiront  (I'ltnc 
pleine  et  entiere  immnnite  ])(mr 
leur  chancellerie  et  les  papiers  qui 


h<i^„ 


CONSULAR  CONVENTION  OF  1788 


the  papers  which  shall  be  therein 
contained.     They  shall  be  exempt 
from  all   personal   service,    from 
soldiers'    billets,    militia,    watcl,, 
guard,   guardianship,    trusteesiiip, 
as  well  as  from  all  duties,  taxes, 
impositions  and  charges   'vhatso- 
ever,  except  on  the  estate  real  and 
personal   of   which   they   may  be 
the     proprietors     or     possessors, 
which  shall  be  subject  to  the  taxc 
imposed  on  the  estates  of  all  other 
individuals:  And  in  all  other  in- 
stances they  shall   be   subject   fd 
the  laws  of  the  land  as  the  nativt-N 
are.     Those  of  the  said  ConsuN 
and  Vice-Consuls  who  shall  exer 
else   commerce,    shall    be    respec- 
tively subject  to  all  taxes,  chan^^es 
and    impositions    established   "oi, 
other  merchants.  They  shall  place 
over  the  outward   door  of   their 
house  the  arms  of  their  sovereiijn ; 
hut  this  mark  of  indication  shall 
not  give   to   the   said   house   any 
privilege  of  asylum  for  any  per- 
son or  property   whatsoever. 

.'Vrticlk  III 

The  respective  Consuls  and 
Vice-Consuls  may  establish  agents 
in  the  different  ports  and  places 
of  their  departments  where  neces- 
sity shall  require.  These  agents 
may  be  chosen  among  the  mer- 
chants, either  national  or  foreign, 
and  furnished  with  a  commission 
from  one  of  the  said  Consuls: 
They  shall  confine  themselves  re- 


475 

y   seront   renfermes.      lis    seront 
exemts  de  tout  service  personnel, 
logement  des  gens  de  guerre,  mi- 
lice,  guet,  garde,  tutelle,  curatelle, 
amsi  que  de  tous  droits,  taxes,  im- 
positions et  charges  quelconques, 
a  1 'exception  seulement  des  biens 
meubles    et    immeubles    dont    ils 
seroient  proprietaires   ou   posses- 
seurs.    lesquels    seront    assujettis 
aux  taxes  imposees  sur  ceux  de 
tous  autres  particuliers.  et  a  tous 
esjards  ils  demeureront  sujets  aux 
loix  du  pa?s  comme  les  nationaux. 
Ceux    des    dits    consuls    et    vice- 
consuls   qui    feront    le   commerce 
seront    respectivement    assujettis 
a  toutes  les  taxes,  charges  et  im- 
positions   etablies    sur   les   autres 
negociants.      lis   placeront   sur  la 
porte  exferieure  de  lenrs  maisons 
les  amies  de  leur  soiiverain.  sans 
que      cette      marque      distinctive 
puisse  dnnner  aux  dites  mn.isons 
lo  droit  d'asile.  soit  pnnr  des  per- 
sonnes,  soit  pour  des  effets  quel- 
conques. 

.^RTTcr.K  TTT 

I-es  consuls  et  vice-consuls  res- 
pectifs  iMurront  ctablir  des  agens 
dans  les  differens  ports  et  lieux 
de  leurs  departements  oil  le  besoin 
I'exigera  ;  ces  agens  pourront  efre 
choisis  parmi  !es  negociants  na- 
tionaux on  etrantrers,  et  munis  de 
la  conmiission  de  I'un  des  dits 
consuls.  Tls  se  renfermeront  res- 
pectivement  a    r  'ndre   aux   com- 


476  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


spectively  to  the  rendering  to 
their  respective  merchants,  navi- 
gators, and  vessels,  all  possible 
service,  and  to  inform  the  nearest 
Consul  of  the  wants  of  the  said 
merchants,  navigators  and  vessels, 
without  the  said  agents  otherwise 
participating  in  the  immunities, 
rights  and  privileges  attributed  to 
Consuls  and  Vice-Consuls,  and 
without  power,  under  any  pretext 
whatever,  to  exact  from  the  said 
merchants  any  duty  or  emolument 
whatsoever. 

Article  IV 

The  Consuls  and  Vice-Consuls 
respectively  may  establish  a  chan- 
cery, wliere  shall  be  deposited  the 
consular  determinations,  acts  and 
proceedings,  as  al.<o  testaments, 
obligations,  contracts  and  other 
acts  done  by  or  between  persons 
of  their  nation,  and  effects  left 
by  deceased  persons,  or  saved 
from  shipwreck.  They  may  con- 
sequently appoint  fit  persons  to 
act  in  the  said  chancery,  receive 
and  swear  them  in.  commit  to 
them  the  custody  of  the  seal,  and 
authority  to  seal  commissions, 
sentences  and  other  consular  acts, 
and  also  to  discliarge  the  func- 
tions of  notary  and  register  of  the 
consulate. 

Artici.f.  V 

The  Consuls  and  Vice-Consuls 
respectively  shall  have  the  exchi- 


mergants,  navigateurs  et  bati- 
ments  respectifs,  tous  les  services 
possibles,  et  a  inforn  °r  le  corsul 
le  plus  proche  des  besoms  des  dits 
commergants,  navigateurs  et  bail- 
ments, sans  que  les  dits  aiicns 
puissent  autrement  participer  au\ 
immunites,  droits  et  privileges  at- 
tribues  aux  consuls  et  vice-con- 
suls, et  sans  pouvoir  sous  aucun 
pretexte  que  ce  soit,  exiger  aucun 
droit  ou  emolument  quelconque 
des  dits  commerqants. 

Article  IV 

Les  consuls  et  vice-consuls  res- 
pectifs pourront  etablir  une  clian- 
cellerie  oil  seront  deposes  les  de- 
liberations, actes  et  procedun-s 
consulaires,  ainsi  que  les  lest.n- 
ments,  obligations,  contrats.  et 
autres  actes  faits  par  les  iiatin- 
naux  ou  entr'eux,  et  les  effete  de- 
laisses  par  mort.  ou  sauves  des 
naufrasjes.  lis  pourront  en  conse- 
quence commettre  a  IVxercice  de 
la  dile  chancellerie  des  personne-; 
capaWes.  les  recevoir,  lour  faire 
preter  serment,  leur  dnnmr  In 
u;arde  du  sceau  et  le  droit  de 
sceller  les  commissions,  inue- 
nicnts  et  autres  actes  consulaires. 
ainsi  que  d'y  remplir  les  fonctinns 
de  notaire  et  jjreflRers  du  consnlat. 

Article  V 

T.es  consuls  et  vice-consuls  res- 
pectifs auront  le  droit  exclusif  de 


CONSULAR  CONVENTION  OF  1788 


sive   right   of    receiving   in    their 
chancery,  or  on  board  of  vessels. 
the  declarations  and  all  other  the 
acts  which  the  captains,  masters, 
crews,  passengers,  and  merchants 
of  their  nation  may  chuse  to  make 
there,  even  their  testaments  and 
other  disposals  by  last  will :  And 
the  copies  of  the  said  acts,  duly 
authenticated  by  the  said  Consuls 
or   V^ice-Consuls,    under  the   seal 
of  their  consulate,   shall    receive 
faith  in  law,  equally  as  their  oris,- 
inals  would,  in  all  the  tribunals  of 
the  dominions  of  the  Most  Chris- 
tian   King    and    of    the    United 
States.    They  shall  also  have,  and 
exclusively,  in  case  of  the  absence 
of  the  testamentary  executor,  ad- 
ministrator, or  legal  heir,  the  right 
to  inventory,  liquidate,  and  pro- 
ceed to  the  sale  of  the  personal 
estate  left  by  subjects  or  citizens 
of    their    nation    who    shall    die 
within  the  extent  of  their  consul- 
ate;  they    shall    proceed    therein 
with  the  assistance  of  two  mer- 
chants of  their  said  nation,  or,  for 
want  of  them,  of  any  other  at 
their  choice,  and  shall  cause  to  be 
deposited  in  their  chancery  the  ef- 
fects and  papers  of  the  said  es- 
tates;   and    no    officer,    military, 
judiciary,  or  of  the  police  of  the 
country,  shall  disturb  them  or  in- 
terfere   therein,    in    anv    manner 
whatsoever:  But  the  said  Consuls 
and  Vice-Consuls  shall  not  deliver 
up  the  said  effects,  nor  the  pro- 


477 


recevoir  dans  leur  chancellerie,  ou 
a  bord  des  batiments,  les  declara- 
tions et  tous  les  autres  actes  que 
les  capitaines,  patrons,  equipages, 
passagers,   et  negociants  de   le.- 
nation  voudront  y  passer,  meme 
leur  testament  et  autres  disposi- 
tions de  derniere  volonte,  et  les 
dispositions    des    dits   actes    due- 
ment  legalises  par  les  dits  consuls 
ou  vice-consuls,  et  munis  du  sceau 
de  leur  consulat,  feront  foi  en  jus- 
tice comme  le  feroient  les  origi- 
naux  dans  tous  es  tribunaux  des 
etats  du  Roi  tres  Chretien  et  des 
Etats  Unis.     Us  auront  aussi    et 
exclusivement,    en    cas    d'absence 
d'executeur    testamentaire,    cura- 
teur  ou  heritiers  legitimes,  le  droit 
de  faire  1  inventaire,  la  liquidation 
et  de  proceder  a  la  vente  des  eflFets 
mobiliers  de  la  succession  des  su- 
jets  ou  citoyens  de   leur  nation, 
qui     viendront    a     mourir    dans 
I'etendue  de  leur  consulat.     lis  y 
procederont   avec    I'assistance    de 
deux  negocians  de  leur  dite  na- 
tion,  ou   a   leur  defaut.   de   tout 
autre  h  leur  chnix.  et  feront  de- 
poser   dans   leur  chancellerie    les 
efFets  et  papiers  des  dites  succes- 
sions,    sans     qu'aucuns     officiers 
militaires.  de  justice,  on  de  police 
du  pais,  puissent  les  y  trouhlor.  ni 
y   intervenir  de  quelque   manicre 
que  ce  soit;  mais  les  dits  consuls 
ef  vicp-cnnMils  ne  pourront  faire 
la  deliverance  des  successions  et 
de  leur  nroduif  atix  heritiers  letri- 


478   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


s 


ceeds  thereof,  to  the  lawful  heirs, 
or  to  their  order,  till  they  shall 
have  caused  to  be  paid  all  debts 
which    the    deceased    shall    have 
contracted    in    the    country;    for 
which  purpose  the  creditors  shall 
have  a  right  to  attach  the  said  ef- 
fects in  their  hands,  as  they  might 
in  those  of  any  other  individual 
whatever,  and  proceed  to  obtain 
sale  of  them  till  payment  of  what 
shall   be   lawfully   due   to   them. 
When  the   debts  shall  not  have 
been  contracted  by  judgment,  deed 
or   note,    the   signature    whereof 
shall  be  known,  payment  shall  not 
be  ordered  but  on  the  creditor's 
giving    sufficient    surety,    resident 
in  the  country,  to  refund  the  sums 
he    shall    have    unduly    received, 
principal,  interest  and  cost ;  which 
surety    nevertheless    shall    stand 
duly  discharged,  after  the  term  of 
one  year  in  time  cf  peace,  and  of 
two  in  time  of  war.  if  the  demand 
in    discli.irjje    cannot    be    formed 
before  the  end  of  this  term  against 
the  heirs  who  shall  present  them- 
selves,     .^nd    in   order   that    the 
heirs   may   not   be   unjustly  kept 
out  of  the  effects  of  the  deceased, 
the     Consuls    and     Vice-Consuls 
shall  notify  his  death  in  some  one 
of  the  gazettes  published  within 
their  consulate,  and  that  they  shall 
retain    the    said    effects    in    their 
hands  four  months  to  answer  all 
demands     which     shall    be     pre- 
sented; and  thev  shall  be  bound 


times,    ou    a    leurs    mandataires 
qu'apres  avoir  fait  aquitter  toutt■^ 
les  dettes  que  les  defunts  auront 
pu  avoir  contractees  dans  le  pais ; 
a   I'efFet    de   quoi    les    creanciers 
auront  droit  de  saisir  les  dits  ef- 
fets  dans  leurs  mains,  de  meme 
que  dans  celles  de  tout  autre  in- 
dividu    quelconque,    et   en    pour- 
suivre  la  vente  jusqu'au  paienient 
de  ce  qui  leur  sera  legitimement 
di ;  lorsque  les  dettes  n'auront  ete 
contractees    par    jugement.    par 
acte,  ou  par  billet  dont  la  sign.i- 
ture   sera   reconnue,   le   paienient 
ne  pourra  en  etre  ordonne  qu'cn 
fournissant  par  le  creancier  cau- 
tion   suffisante    et    domiciliee    de 
rendre  les  sonmies  induement  per- 
cues,  principal,  interets  et  fraix; 
les    quelles    cautions     cependant 
demeureront  duement  decharsces 
apres  une  annee,  en  temj  de  paix. 
et  deux,  en  terns  de  guerre,  si  la 
demande  en  decharge  ne  pent  etre 
formee  avant  ces  delais  contre  le^ 
heritiers  qui  se  presenteront.     Ft 
afin  de  ne  pas  faire  injustenicnt 
attendre   aux   heritiers   1e^   "fTit> 
du  defunt.  les  consuls  et  vice-con- 
suls feront  annoncer  sa  niort  flniis 
quelqu'une    des    gazettes    qui    <i' 
publient    dans    I'etendue    de    ]vm 
consulat,  et  qu'ils  retiendnun  !<•< 
dits  efFets  sous  leurs  niain<  pen- 
dant quatre  mois  pour  renonilrc  ,i 
toutes   les   demandes  qui   =e  i^n'- 
senteront :    et    ils    sernnt    tenn-. 
apres    ce    delai.    de    delivrer    ui\ 


CONSULAR  CONVENTION  OF  1788 


I 


after  this  delay  to  deliver  to  the 
persons  succeeding  thereto,  what 
shall  be  more  than  sufficient  for 
the  demands  which  shall  have 
been  formed. 


479 

heritiers,  lexcedent  du  n.ontant 
des  deniandes  qui  auront  ete 
rormees. 


Article  VI 

The  Consuls  and  Vice-Consuls 
respectively  shall  receive  the  dec- 
larations, protests  and  reports  of 
all  captains  and  masters  of  their 
respective  nation  on  account  of 
average  losses   sustained  at  sea; 
and  these   captains  and   masters 
shall  lodge  in  the  chancerj  of  the 
said    Consuls    and    Vice-Consuls 
the  acts   which   they   may   have 
made  in  other  ports  on  account  of 
the    accidents    which    may    have 
happened  to  them  on  their  voyage. 
If  a  subject  of  the  Most  Christian 
King  and  a  citizen  of  the  United 
!^tates.  or  a   foreigner,  are  inter- 
ested in  the  said  cargo,  the  average 
shall  be  settled  by  the  tribunals  of 
the  country,  and  not  bv  the  Con- 
suls or  Vice-Consuls:   but   when 
only  the   subjects  or  citizens   of 
their  own   nation  shall   he   inter- 
ested,  the   respective   Consuls  or 
Vice-Consuls  shall  appoint  skillful 
persons  to  settle  the  damages  and 
average. 

ARTiri.F,  VTI 


Article  VI 

Les  consuls  et  vice-consuls  res- 
pectifs  recevront  les  declarations 
protestations  et  rapports  de  tous 
capitames  et  patrons  de  leur  na- 
tion respective,  pour  raison  dava- 
nes  essuyees  a  la  mer.  et  ces  capi- 
tames  et  patrons  remettront  dans 
la    chancellerie    des    dits    consuls 
et    vice-consuls    les    actes    qu'ils 
auront  faits  dans  d'autres  ports 
pour  les  accidens  qui  leur  seront 
arrives  pendant  leur  vovage      Si 
un  sujet  du  Roi  tres  Chretien  et 
un  habitant  des  Etats  Unis,  ou  un 
etranger,  sont  interesses  dans  la 
d'te   cargaiso.i,    I'avarie    sera    re- 
Rlee  par  les  trihunaux  du  pais    et 
non  par  les  consuls  et  vice-con- 
suls:  mais  lorsqu'il  nVaurad'in- 
teresses  que  les  sujets  ou  citovens 
de  leur  propre  nation.  les  consuls 
ou     les     vice-consuls     respectifs 
nommeront  des  exp.>rts  pour  re- 
gler  les  dommages  et  avaries. 


ARTirr.K  \'Tr 


4S0  TRKATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


coasts  of  the   United  States,  and 
ships    or   vessels    of    the    United 
States   shall  be   stranded  on   the 
coasts   of    the    dominions   of    the 
Most  christian  King,  the  Consul 
or     \'ice-Consul    nearest    to    tiie 
place  of  shipwreck  shall  do  what- 
ever he  may  judge  proper,  as  well 
for  the  purpose  of  saving  the  said 
ship  or  vessel,  its  cargo  and  ap- 
purtenances,   as    for    the    storing 
and  the  security  of  the  etTccts  and 
merchandize  saved.     1  le  may  take 
an  inventory  of  them,  without  the 
intt  iiueddliiig  of   any  otificers   of 
the   military,  of   the  customs,  of 
justice,   or   of    the   police   of   the 
country,   otherwise   than   to   give 
to     the     Consuls.     \'ice-Consuls, 
captain   and   crew   of   the    vessel 
shipwrecked  or   stranded,  all   the 
succour  and    favour    which    they 
shall  ask  of  them,  either  for  the 
expedition    and    security    of    the 
saving,  and  of  the  e'Tects  saved,  or 
to  prevent  all  disturbance.     And 
in  order  to  prevent  all  kinds  of 
dispute  and  discussion  in  the  said 
cases   of   shipwreck,   it   is  agreed 
that  when  there  shall  be  no  Cc  i- 
sul   or   Vice-Consul   to  attend   to 
the  saving  of  the  wreck,  or  tl-.rit 
the  residence  of  the  said  Con-ul 
or  \'ice-Consul   (he  not  being  ,-it 
the  place  of  the  wreck)   shall  !  • 
more  distant  from  the  said  |l,n\' 
than  that  of  the  competent  judge 
of   the   country,    the   latter    shall 
immediately  proceed  therein,  with 


sur  les  cotes  des   Etats  Unis,  t 
des    vaisseaux    et    batiments    (L 
Etats    Unis    echoiieront    sur    li 
cotes  des  Etats  de  sa  Majeste  trc 
Chretienne,  le  consul  ou  le  vict 
consul,  le  plus  proche  du  lieu  il 
naufrage,    pourra    faire    tout    c 
qu'il  jugera  convenable,  tant  p.  n 
sauver  le  dit  vaisseau  ou  batiiiiin; 
son  chargement   et  apartenanc;.- 
que    pour    le    niagazinage    et    I; 
siirete  des  efFets  sauves  et  mar 
chandises.     II  pourra  en  fnirc  Tin 
ventaire,   sans   quaucuns   otVic'ir 
militaires,  des  doiianes,  dc  jii-tic( 
ou  de  police  du  pais,  puissent  -  ■ 
immiscer  autrcment  que  notir  t'.i 
ciliter  aux  consuls  et  vice-consul? 
capitaine  et  equipage  du  vais^eai; 
naufrage,  ou  echoue,  touG  les  se- 
cours   et   faveurs   qu'ils   leur  de- 
manderont,  soit   pour  la   ceKritO 
et  la  surete  du  sauvetage  et  'le- 
effets  sauves,  soit  pour  evitcr  tr.n> 
desordres.     Pour  prevenir  nienie 
toute  espece  de  conflit  et  dc  dis- 
cussion dans  les  dits  cas  do  nau- 
frage, il  a  ete  convent!  que  lnr<- 
qu'il  ne  se  trouvera  pas  de  con-uI 
ou    vice-consul    pour    faire    trp.- 
vailler   an    sauvetage.   ou    que   'a 
residence  du  dit  consul  on  vke- 
rnn^til,  qui  ne  se  trouvera  pa<  ?ur 
le    lieu    du    naufrage.    sera    phi? 
eloignee  du  dit  lieu  que  celle  <l',i 
juee  territorial  competent,  cc  der- 
nier sera  proceder  sur  le  champ 
avec  toute  la  celc'rite,  la  surete  :t 
les  nrecautif)nr.  prescrites  par  le' 


D   1 


CONSULAR  CONVENTION  OF  1788 


all    the    dispatch,    certainty,    and 
precautions  prescribed  by  the  re- 
spective laws;  but  the  said  terri- 
torial judge  shall  retire  on  the  ar- 
rival of  the  Consul  or  Vice-Con- 
sul,  and  shall  deliver  over  to  hini 
the  report  of  his  proceedings,  the 
expenses  of  which  the  Consul  or 
Vice-Consul  shall  cause  to  be  re- 
imbursed to  him,  as  well  as  those 
of  saving  the  wreck.     The  mer- 
chandize and  effects  saved  shall 
be  deposited  in  the  nearest  cus- 
tom-house,   or    other    place    of 
safety,  with  the  inventory  thereof, 
which  shall  ha.-e  been   made   by 
the  Consul  or  Vice-Consul,  or  by 
the  judge   vho   shall   have   pro- 
ceeded ii  /  absence,  that  the 
said  effect.      id  merchandize  may 
be    afterwards    delivered,    (after 
levying  therefrom  the  costs,)  and 
n-'tbout   form  of  process  to   the 
owners,  who,  being  furnished  v,  tli 
an  order  for  their  delivery  from 
the  nearest  Consul  or  Vice-Con- 
sul, shall  reclaim  them  by  them- 
selves or  by  their  order,  either  for 
the  purpose  of  re-exportinjr  such 
•nerchandize.  in  which  case  they 
shall  pay  no  kind  of  duty  of  ex- 
portation, or  for  that  of  selling 
them  in  the  country,  if  they  be  not 
prohibited  there,  and  in  this  last 
caise  the  said  merchandize,  if  they 
be  damaged.  Dhall  be  allowed  an 
abatement  of  entrance  duties,  pro- 
portioned to  the  damage  they  have 
sustained,   which  shall  be  ascer- 


481 

loix  respectives;  sauf  au  dit  juge 
territorial  a  se  retirer,  le  consul  ou 
vice-consul  survenant,  et  a  lui  re- 
mettre     I'expedition    des     proce- 
dures par  lui  faites,  dont  le  consul 
ou  vice-consul  lui   fera  rembour- 
ser  les  fraix,  ainsi  que  ceux  du 
sauvetage.     Les  marchandises  et 
effets  sauves  devront  etre  deposes 
a  la  doiiane  ou  autre  lieu  de  surete 
le  plus  prochain  avec  Tinventairc 
qui  en  aura  ete  dresse  par  le  con 
sul    ou    vice-consul,    ou    en    leur 
absence  par  !e  juge  qui  en  aura 
connu,  pour  les  dits  effets  et  mar- 
chandises   etre    ensuite    delivres 
apres   le   prelevement   des    fraix, 
et  sans  forme  de  proces,  aux  pro- 
prictaires.  qui.  munis  de  la  main- 
levee  du  cnnsul  ou  vice-consul  le 
plus  pro.  reclameront  par 

eux-memes,  .  'eurs  manda- 

taires.    soit    pour    reexporter    les 
marchandises,  et  dans  ce  cas  elles 
ne    paieront    aucune    espece    de 
droits  de  sortie,  soit  pour  les  ven- 
dre  dans  le  pais,  si  dies  n'y  sont 
pas  prohibees;  et  dans  ce  dernier 
cas.    les    dites    marchandises    se 
trouvant  avariee  .  on  leur  accor- 
dera     une     mo    ration     sur     les 
droits    d'entree    .iroportionne    au 
dommayie     souffert,     lequel     sera 
constate    par    le    proces     verbal 
dresse   lors   du    naufrage   ou   de 
I'echoiiement. 


482  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


toined  by  the  affidavits  taken  at 
the  time  the  vessel  was  wrecked 
or  struck. 


Article  VIII 

The   Consuls   or   Vice-Consuls 
shall  exercise  police  over  all  the 
vessels  o£  their  respective  nations, 
and  shall  have  on  board  the  said 
vessels  all  power  and  jurisdiction 
in  civil  matters,  in  all  the  disputes 
which  may  there  arise ;  they  shall 
have  an  entire  inspection  over  the 
said  vessels,  their  crew,  and  the 
changes  and  substitutions  there  to 
be  made ;  for  which  purpose  they 
may  go  on  board  the  said  vessels 
whenever  they  may  judge  it  nec- 
essary.   Well  understood  that  the 
functions  hereby  allowed  shall  be 
confined  to  the  interior  of  the  ves- 
sels, and  that  they  shall  not  tak'- 
place  in  any  case  which  shall  have 
any  interference  with  the  police 
of  the  ports  where  the  said  vessels 
shall  be. 


Article  IX 

The  Consuls  and  Vice-Consuls 
may  cause  to  be  arrested  the  cap- 
tains, officers,  mariners,  sailors 
and  all  other  persons  being  part 
of  the  crews  of  the  vessels  of 
their  respective  nations,  who 
shall  have  deserted  from  the  said 
vessels,  in  order  ro  send  them  back 
and    transport    them   out    of    the 


Article  VIII 

Les    consuls    ou    vice-consuls 
exerceront  la  police  sur  tous  ks 
batiments   de    leurs    nations    res 
pectives.  et  auront  a  bord  des  d.is 
batiments  tout   pouvoir  et  juris- 
diction   en    matiere    civile    dans 
toutes   les   discussions   qui   pour- 
ront  y  survenir;   ils   auront   uiic 
entiere    inspection    sur    les    dit, 
batiments,  leurs  equipages  ct  Its 
changements  et  rempL.        .,ts  d 
y  faire;  pour  quel  efTet  >     p,,t,r- 
ront  se  transporter  a  bord  des  dit, 
batiments  toutes  les  fois  qtrHs  le 
jugeront  necessaire ;  bien  entciKlu 
que  les  fonctions  ci-dessus  eimn- 
cees  seront  concentrees  dans  rin- 
terieur  des  batiments.  et  quVllts 
ne  pourront  avoir  lieu  dans  aucun 
cas  qui  aura  quelque  rapport  nvoc 
la    police   des    ports    ou    les   dits 
batiments  se  trouveront. 

Artici.k  IX 

Les  consuls  et  vice-consuls 
pourront  faire  arreter  les  capi- 
tames.  officiers.  mariniers.  mate- 
lots  et  toutes  autrcs  persoiines 
faisant  partie  des  equipages  des 
batiments  de  leurs  nations  res- 
pectives,  qui  auroient  desertc  des 
dits  batiments,  pour  les  renvover 
et  faire  transporter  hors  du  pais. 


CONSULAR  CONVENTION  OF  1788 


483 


country;   for  which  purpose  the 
said    Consuls    and    Vice-Consuls 
sliall  address   themselves   to   the 
courts,  judges  and  officers  compe- 
tent, and  shall  demand  the  said 
deserters  in  writing,  proving  by 
an  exhibition  of  the  registers  of 
the  vessel  or  ship's  roll  that  tnose 
men  were  part  o  fthe  said  crews ; 
and  on  this  demand  so  proved 
(saving,  however,  where  the  con- 
trary is  proved)  the  delivery  shall 
not  be  refused ;  and  there  shall  be 
given  all  aid  and  assistance  to  the 
said  Consuls  and  Vice-Consuls  for 
the  search,  seizure  and  arrest  of 
the  said  deserters,  who  shall  even 
be  detained  and  kept  in  the  prisons 
of  tne  country,  at  their   request 
and  expense,  until  they  shall  have 
found  an  opportunity  of  sendins,' 
them  back ;  but  if  i,hey  be  not  sent 
back  within  three  months,  to  be 
counted  from  the  day  o '  their  ar- 
rest, they  shall  be  set  at  li'ierty. 
and  shall  be  no  more  arrested  for 
the  same  cause. 


Auquel  effet  les  dits  consuls  et 
vice-consuls    s'addresseront    aux 
tribunaux,  juges,  et  officiers  com- 
petents  ct  leur  feront.  par  ecrit, 
la  demande  des  dits  deserteurs,  en 
justifiant  par  lexhibition  des  re- 
gistres  du  batiment  ou  rCle  d'equi- 
page,  que  ces  homines   faisoient 
partie  des  susdits  equipages.     Et 
si.r  cette  demande,  ainsi  justifiee, 
'  luf  toutefois  la  preuvp  contraire,' 
1  extradition    ne    pourra    etre   re- 
fusee  :  ct  il  sera  donne  toute  aide 
et  assistance  aux  dits  consuls  et 
vice-consuls    pour    la    recherche, 
saisie    et    arrestation    des    susdits 
deserteurs,   Icsquols  seront  meme 
detenus  et  crardt's  dans  les  prisons 
du  pais,  a  leur  requisition,  et  a 
leurs  frais  jusqua  ce  qu'ils  alent 
trouve   occasion    de    les    renoyer. 
Mais  s'ils  n'etoient  renvoyes  dans 
le  delai  de  trnis  mois  a  compter 
du  jour  de  leur  arret,  ik  seront 
elars;is,  et  ne  pourront  plus  etre 
arretes  pour  la  meme  cause. 


Article  X 

In  cases  where  the  respective 
subjects  or  citizens  shall  have 
committed  any  crime,  or  breach 
of  the  peace,  they  shall  be  ame- 
nable to  the  judges  of  the  country. 

AkTicr.K   XI 

When  the  said  offenders  shall 
be  a  part  of  the  crew  of  a  vessel 


Articlk  X 

Dans  le  cas  ou  les  sujets  ou 
citoyens  respectifs  auront  cnnj- 
mis  quelque  crime  ou  infraction 
de  !a  tranquillite  publique.  ils  se- 
ront justiciables  des  juges  du  pais. 

Article  XI 

Lorsque  les  dits  coupables   fe- 
ront partie  de  Tequipage  de  I'un 


484  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


of    their  nation,   and   shall    have 
withdrawn  themselves  on  board 
the  said  vessel,  they  may  be  there 
seized  and  arrested  by  order  of 
the  judges  of  the  country.    These 
shall   give  notice  thereof   to   the 
Consul  or  Vice-Consul,  who  may 
repair    on    board    if    he    thinks 
proper;  but  this  notification  shall 
not  in  any  case  delay  execution  of 
the  order  in  question.     The  per- 
sons   arrested    shall    not    after- 
wards be  set  at  liberty  until  the 
Consul  or  Vice-Consul  shall  have 
been    notified   thereof;   and   they 
shall  be  delivered  to  him.  if  he  re- 
quires it,  to  be  put  again  on  board 
of  the  vessel  on  which  they  were 
arrested,  or  of  others  of  their  na- 
tion, and  to  be   sent  out  of  tlte 
country. 

Article  XII 


des  batiments  de  leur  nation,  et  se 
seront    retires    a    bord    des    dits 
navires,  il?  pourront  y  etre  saisis 
et  arretes  par  I'ordre  des  juges 
territoriaux :  ceux-ci  en  previen- 
dront   le   consul   ou    vice-consul, 
lequel  pour.-a  se  rendre  a  bord  s'il 
le  juge  a-propos:  mais  cette  pre- 
venance ne  pourra  en  aucun  cas 
retarder    I'execution     de     I'ordre 
dont  il  est  question.     Les  person- 
nes  arretees  ne  pourront  ensuitc 
etre  mises  en  liberte,  qu'apros  qup 
le  consul  ou  vice-consul  en  aura 
ete  prevenu.  et  elles  lui  seront  re- 
mises   s'il   le    requiert.    pour  etre 
reconduites  sur  les  batiments  ,,u 
elles  auront  ete  arretes.  ou  autns 
de  leur  nation,  et  etre  renvoyets 
hors  du  pais. 


All    differences    and    suits    be- 
tween  the   subjects  of   the    Most 
niristian     Kin;,'     in    the     United 
States,  or  between  the  citizens  of 
th<    I'nited  States  within  the  do- 
minions   of    the    Most    Christian 
King,  and  particularly  all  disputes 
relative   to  tiie   wages  and  term< 
of  engagement  of  the  crews  of  the 
respective  vessels,  and  all  differ- 
ences, of  whatever  nature  they  be. 
which  may  arise  between  the  pri- 
vates  of   the   said   crews,   or   be- 
tween any  of  them  and  tiieir  c;ip~ 
t.iinv.  ,,r  hct«c,n  (he  captains  cf 
different   ve^els   of  their  nation. 
shall  he  determined  by  the  re«pec- 


Article  XII 

Tons  differends  et  proces  eiitrc 
les    sujets   du    Ro.    tres    Chretien 
dans  les  Etats  Unis,  ou  entre  les 
citoyens  des  Etats  Unis  dans  Us 
Etats    du    Roi    tres    Chretien.    <t 
notamment  toutes  les  discusti.in- 
relatives  aux  salaires  et  conditiuns 
des    engagements    des    equip,i.;,.s 
des   batiments    r-spectifs.   el   tons 
differends      de      quelque      nature 
qu'ils  soient.  qi'!  pourroient  sVV- 
ver    entre    les    liomnies    des    dits 
e(|uipa,'es.  ou  entre  qu<l(|tus  itii- 
d'eux  et  leurs  capitaitics.  ,.,i  put,,. 
les  capitaines  de  divers  kitiniciitv 
nationaux,  seront  tennmes  par  Ics 
consuls  et  vice-consuls  rcspcctifs. 


CONSULAR  CONVEXTION  OF  1788 


tive    Consuls   and    Vice-Consuls, 
either  by  a  reference  to  arbitra- 
tors, or  by  a  summary  judgment, 
and  without  costs.    No  officer  of 
the  country,  civil  or  military,  shall 
interfere  therein,  or  take  any  part 
whatever  in  the  matter;  and  the 
appeals   from   the   said   consular 
sentences  shall  be  carried  before 
the  tribunals  of  France  or  of  the 
United  States,  to  whom   it  may 
^  appertain     to     take     cognizance 

thereof. 

Article  XIII 

The  general  utility  of  commerce 
having  caused  to  be  established 
within  the  dominions  of  the  Most 
Christian    King   particular   tribu- 
nals and  forms  for  expediting  the 
decision  of  commercial  affairs,  the 
merchants   of   the   United   States 
shall  enjoy  the  benefit  of  these  es- 
tablishments :  and  the  Congress  of 
the  United  States  will  provide  in 
the  manner  the  most  conformable 
to  its  laws  for  the  establishment 
of  equivalent  advantages  in  favour 
of  the  French  merchants,  for  the 
prompt  dispatch  and  decision  of 
affairs  of  the  same  nature. 


485 


soit  par  un  renvoi  par  devant  des 
arbitres,    soit   par    un    jugement 
sommaire,  et  sans  frais.     Aucun 
officier  territorial,  civil  ou  mili- 
taire  ne  pourra  y  intervenir,  ou 
prendre    une   part   quelconque   a 
I'affaire,    et    les   appels    des    dits 
jugements  consulaires  seront  por- 
tes  devant  les  tribunaux  dc  France 
ou  des  Etats  Unis  qui  doivent  en 
connaitre. 


Article  XIII 

Lutilite  generale  du  commerce 
auint  fait  etablir  dans  les  etats  du 
Ro,  tres  Chretien,  des  tribunaux 
et  des   formes  particulieres  pour 
acceic-rer  la  decision  des  affaires 
de  commerce,   les   negocians   des 
fc-tats    Unis   jouiront  du   benefice 
de  ces  etablissements.  et  le  Con- 
gres  des  Etats  Unis  pourvoira  de 
a  maniere  la  plus  conforme  a  ses 
'ois.   a   I'etablissement   des   av.in- 
tagcs   equivalents   en    faveur   des 
negocianfs      Frangais      pour      la 
prompte    expedition    et    decision 
des  affaires  de  la  menie  nature 


ARTia-K  XIV 

The  subjects  of  the  Most  Chri^ 
tian  King,  and  the  citizens  of  the 
United  States  who  shall  prove  bv 
legal  evidence  that  thev  are  of  th, 
said  nations  respectively,  shall  in 
ennseqiienco  enjoy  an  exemption 


Articlf:  XIV 

I.es  snjets  dli  Roi  tres  riireti.-i 
et  les  citovens  des  Ktats  I'ni,,  ^„i 
jiistifi.Tont  aiifhenti-inement  etre 
du  corps  de  la  nation  respective, 
jomrnnf  en  ror.sernience  de  IVx- 
•■mption  de  font  ser%ice  i)ersonTiel 


I 


486  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRAXCI- 


from  all  personal  service  in  the 
place  of  their  settlement. 

Article  XV 

If  any  other  nation  acquires  by 
virtue  of  any  convention  whatever 
a  treatment  more  favourable  with 
respect  to  the  consular  pre-emi- 
nences, powers,  authority  and 
privileges,  the  Consuls  and  Vice- 
Consuls  of  the  Most  Christian 
Kinff,  or  of  the  United  States, 
reciprocally  shall  participate 
therein,  ajjreeable  to  the  term; 
stipulated  by  the  second,  third  and 
fourth  articles  of  the  treaty  of 
amity  and  commerce  concluded 
between  the  Most  Christian  Kin;,' 
antl  the  United  States. 

AKTitxi:  XV' I 

The  present  convention  shall  be 
in  full  force  during  the  term  of 
twelve  years,  to  be  counted  from 
the  day  of  the  exchange  of  rati- 
fications, which  shall  be  given  in 
proper  form,  and  exchanged  on 
both  sides  within  the  space  of  one 
year,  or  sooner  if  possible. 

In  faith  whereof,  we.  Ministers 
Plcnipotentiar)-,  have  signed  the 
present  convention,  and  have 
thereto  set  the  seal  of  our  arms. 

Done  ;it  Wrsailles  the  14th  of 
N'ovember.  one  thousand  seven 
hundred  and  eighty-eight. 

I..  C.   Dr.  MoNTMOKlN    [i,.  s] 
Tll  :  jFFFFRSflN  ft.  S.] 


dans  le  lieu  de  leur  etablissement, 

Article  XV 

Si  quelqu'autre  nation  acqiiiert. 
en  vertu  d'une  convention  quel- 
conque,  un  traitement  plus  favo- 
rable relativement  aux  pret-ini- 
nences,  pouvoirs,  autorite  et  privi- 
leges consulaires,  les  consuls  et 
vice-consuls  du  Roi  tres  Chretien 
ou  des  Etats  Unis,  recipriKjue- 
.icnt,  y  participeront.  aux  ternies 
stipules  par  les  articles  deux,  tn.is 
et  quatre,  du  traite  d'amitie  et  dc 
commerce  conclu  entre  le  Roi  tn's 
Chretien  et  les  Etats  Unis. 


Ahticlk  X\"I 

I.a  presente  convention  ;nira 
son  plein  etTet  pendant  I'esp.ice  de 
douze  ans  a  compter  du  jour  de 
Icchange  des  ratifications,  les- 
quelles  seront  donnees  en  bonne 
forme  et  echangees  de  part  et 
d'autie  dans  I'espace  dun  an.  mi 
plutot  si  faire  se  peut. 

En  foi  de  quoi.  nous,  Mini-tres 
Plcnipotentiaires  avons  signe  la 
presente  convention,  et  y  avons 
fait  apposer  le  cac'iet  de  ims 
amies. 

Fait  a  Wrsailles,  le  14  N'oveni- 
bre,  mil  sept  cent  quatre  vinL't- 
huit. 

I..  C.  Dp.  Mo\T\fciKiN  1 1,  s] 

Tiio.M  AS  Jeffi-r.son       [is.] 


I 


CONVENTION  OF  1800  ,^ 

Convention  of  Peace.  Commerce  and  Navigation.  September  30. 1800' 

Concluded  September  30.  ^800;  ratifications  ^changed  at  Paris.  July 
31,   lifoi;  proclaimed  December  21,   1801 


The    Premier    Consul    of    the 
French  Republic  in  the  name  of 
the   people    of    France,    and    the 
President  of  the  United  States  of 
America,  equally  desirous  to  ter- 
minate the  differences  which  have 
arisen    between    the    two    States, 
have  respectively  appointed  their 
Plenipotentiaries,  and  given  them 
full  powers   to  treat  upon  those 
differences,  and  to  terminate  the 
same;  that  is  to  say,  the  Premier 
Consul  of  the  French  Republic,  in 
the  name  of  the  people  of  France. 
-  nnpointed  for  the  Plenipoten- 
tiari       ,,f  the   said    Republic  the 
citizens    Joseph    Bonaparte,    ex- 
Ambassador  at  Rome  and  Coun- 
sellor  of    State;    Charles    Pierre 
Claret   Fleurieu.   Member  of  the 
N'ational    Institute    and    of    the 
Board  of    Longitude   of    France 
and  Counsellor  of  State.  President 
of   the   Section   of    Marine;   and 
Pierre  Louis  Ro-derer.  Member  of 
the  National   Institute  of  France 
and   Coui.ellor   of    State,    Presi- 
dent of  the  Section  of  the  Inte- 
rior;  and   the    President   of    the 
Tnited  States  of  America,  by  and 
with  the  advice  and  consent  of  the 
Senate  of  the  said  States,  has  ap- 
pomted  for  their  Plenipotentiaries 
'^Itv.-  Filsworth.  Chief  Justice  of 


Le   Prenner  Consul  de  la   Re- 
publique    Fran(;aise    au    nom    du 
Peuple   Fran^-ais.  et  le  President 
dcs  Etats-Unis  d'Amerique,  egale- 
mcnt  ariimes  du  desir  de  mettre  fin 
aux  differcnds  qui  sont  survenus 
entre    les    deux    Etats,    ont    res- 
pect ivemeni    nomnie   leurs    Pleni- 
potentiaires,    et    leur    ont    donne 
pleinpouvoir  pour  negocier  sur  ces 
differcnds  et  les  terminer;  c'est  a 
dire,  le  Premier  Consul  de  la  Re- 
[)tiblique    Frangaise,    au    nom    du 
Peuple  Fran(;aise,  a  nomme  pour 
plenipotentiaires    de    la    dite    Re- 
publique,     les     Citoyens     Joseph 
Bonaparte,  ex-ambassadeur  de  la 
Republique   Francais  a   Rome   et 
Conseiller  d'Etat.  Charles  Pierre 
Claret  Fleurieu.  membre  de  I'lnsti- 
tut    National    et   du    Bureau    des 
Longitudes  de  France,  et  Conseil- 
ler d'Etat.  President  de  la  Section 
de  la  Marine,  et  Pierre  Louis  Roe- 
derer.    membre   de    Ilnstitut    Na- 
tional   de    France,    et    Conseiller 
d'Et.nt.  resident  de  l.i  Section  de 
rintenVur;    et    le    IVesident    des 
Erats-l'nis.    d'Amerique,    par    et 
avec  I'avis  et  le  consentement  du 
Senat   des   dits    Etats.   a   nomme 
pour  leurs   Plenipntenfiaires.  Oli- 
vier r.lls'u'ortli.  (  hef  de  la  justice 
des  Etats-Unis ;  If^illiam  Richard- 


f 


'8  Sta,.  L.  178;  18  .St.-,,.  I.,  pt.  2.  p.  m-  Tr.-ati,,  and  Co-ventions.  1889.  p.  32. 


488  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


the  United  States;  William  Rich- 
ardson Davie,  late  Governor  of 
the  State  of  North  Carolina ;  and 
William  Vans  Murray,  Minister 
Resident  of  the  United  States  at 
the  Hague;  who,  after  having  ex- 
changed their  full  powers,  and 
after  full  and  mature  discussion 
of  the  respective  interests,  have 
agreed  on  the  following  articles: 

Article  I 

There  shall  be  a  firm,  inviolable, 
and  universal  peace,  and  a  true 
and  sincere  friendship  between 
the  French  Rep ..  c  and  the 
United  States  of  America,  and 
between  their  respective  countries, 
territories,  cities,  towns,  and  peo- 
ple, without  exception  of  persons 
or  places. 

Article  11' 


son  Davie,  ci-devant  Gouvemeur 
de  I'Etat  de  la  Caroline  septentrio- 
nale,  et  WUliam  Vans  Murray, 
Ministre  resident  des  Etats-Unis 
a  La  Haye. 

Lesquels,  apres  avoir  fait  I'ex- 
change  de  leurs  pleins-ponvoirs 
longuement  et  murement  discute 
les  Interets  respectifs,  sont  con- 
venus  des  articles  suivans. 

Article  I 

II  y  aura  une  paix  ferme,  in- 
violable et  universelle,  et  une  ami- 
tie  vraie  et  sincere,  entre  la  Re- 
publique  Frangaise  et  les  Etats- 
Unis  d'Amerique,  ainsi  qu'entre 
leurs  pays,  territoires,  villes  et 
places,  et  entre  leurs  citoyens  ct 
habitants,  sans  exception  de  pir- 
sonnes  ni  de  lieux. 

Article  II 


Ihe    Mm.sters    Plenipotentiary  Les  Ministres  Plenipr.tentiains 

of  the  two  parties  not  being  able  des  deux  parties  ne  pouvant  pour 

to  agree  at  present  respecting  the  le  present  saccorder  relativenK-.u 

treaty  of  alliance  of  6th  February,  au  Traite  d'Alliance  du  6  Fcvri.r 

1778,    the    treaty    of    amity    and  1778,   au    Traite   d'Amitie  ct   ,le 

commerce  of  the  same  date,  and  commerce  de  la  meme  date    ct  a 


the  con-.ention  of  14th  of  Novem 
ber,  1788.  nor  upon  the  indemni- 
ties mutually  due  or  claimed,  the 
parties  will  negociate  further  on 
these  subjects  at  a  convenient 
time,   and    until    they    may    have 


la  Convention  en  date  du  14  N'o- 
vciiibrc  1788.  noil  phis  que  nla- 
tivenuMit  aux  indemnites  inutuillc- 
inent  dues  ou  reclamecs,  Ics  parties 
negocieront  ulterieiirement  sur 
CO   objets,  dans  un   terns  C(.iiv<.- 


It    IS  ^iKreed    .hat   the   present   convention   shall   l,,-  in    for.e    f,.r  t!„.  term    .f 
n>:ht  years  from  the  fme  of  the  rxchanRc  of  ratifications  "  """  " 


CONVENTION  OF  1800 


agreed  upon  these  points  the  said 
treaties  and  convention  shall  have 
no  operation,  and  the  relations  of 
the  two  countries  shall  be  regu- 
lated as  follows: 

Article  III 

The  public  ships  which  have 
been  taken  on  one  part  and  the 
other,  or  v/hich  may  be  taken  be- 
fore the  exchange  of  ratifications, 
shall  be  restored. 


489 

nable:  et  jusqu'  a  ce  qu'elles  se 
^oyent  accordees  sur  ces  points, 
les  dits  Traites  et  convention 
nauront  point  d'EfFet,  et  les  rela- 
tions des  deux  Nations  seront  re- 
glees  ainsi  qu'il  suit. 

Article  III 

Les  Batimens  d'Etats  qui  ont 
^te  pris  de  part  et  d'autre  ou  qui 
pourraient  etre  pris  avant  I'echange 
des  ratifications  seront  rendus. 


Article  IV 

Property  captured,  and  not  yet 
detinitively  condemned,  or  which 
may  be  captured  before  the  ex- 
change   of    ratifications    (contra- 
band goods  destined  to  an  enemy's 
port  excepted)  shall  be  mutually 
restored  on  the  following  proofs 
of  ownership,  viz:   The  proof  on 
both  sides  with  respect  to  mer- 
chant ships,  whether  armed  or  un- 
armed, shall  be  a  passport  in  the 
form  following: 


"To  all  7vho  shall  see  these  pres- 
ents, (tree  ting: 
"It  is  hereby  made  known  that 

leave   and    permission    has    been 

given  to „,„» 

-.  master 

and  commander  of  the  ship  called 

•  ^f  the  town  of 

burthen    tons,    or    there- 
abouts,   lying   at   present    in    the 


Article  IV 

Les  proprietes  capturees  et  non 
encore  condamnees  definitivemem 
ou  qui  pourront  etre  capturees 
avant  lechange  des  ratifications 
excepte  les  marchandises  de  con- 
trabande  dertinees  pour  un  port 
ennemi.  seront  rendues  mutuelle- 
ment  sur  les  preuves  suivantes  de 
propriete ;  Savoir: 

De  part  et  d'autre,  les  preuves 
de  propriete  relativement  aux  na- 
vires  marchands.  armes  ou  non 
armes.  seront  un  passeport  de  la 
form  suivantp  : 

"A  to„s  c-f„.r  qui  les  presentes 
verront.  soit  notoire  que  faculte  et 
permission  a  cte  accordee  a 
maitre  ou  commandant  du  navire 
appeile  de  la  ville  de 

de  la  capacite  de  tonneaux 

ou  environ,  se  trouvant  presente- 
ment    dans    lo   port   ot    havre   de 
<"t  destine  p.  .,r  change 


'■rf 


i 


490  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


port  and   haven  of  ,  and 

bound  for ,  and  laden  with 

;  after  that   his   ship   has 

been  visited,  and  before  sailing, 
he  shall  make  oath  before  the  offi- 
cers who  have  the  jurisdiction  of 
maritime  atTairs,  that  the  said 
ship  belongs  to  one  or  more  of  the 

subjects  of ihe  act  whereof 

shall  be  put  s'  tlie  end  of  these 
presents,  as  1.  .ewise  that  he  will 
keep,  and  cau.c  to  be  kept,  by  his 
crew  on  board,  tlic  marine  ordi- 
nances and  regulations,  and  enter 
in  the  proper  office  a  list,  signed 
and     witnessed,     containing     the 
names  and  surnames,  the  places  (jf 
birth  and  abode  of  the  crew  of  his 
ship,  and  of  all  who  shall  embark 
on  board  her,  whom  he  shall  not 
take  on  board  without  the  knowl- 
edge and  permission  of  the  offi- 
".tTs  of  the  marine;  and  in  everv 
port  or  haven  where  he  shall  en- 
ter with  his   ship,  he   shall   shew 
this  present  leave  to  the  officers 
and    judges   of   the    marine,   and 
shall   give   a    faithful   account   to 
them    of    what    passed    and    was 
done  during  his  voyage;  and  he 
shall  carry  the  cfjiours,  arms,  and 
ensigns  of  the   [French  Republic 
or  the  United  States)   during  his 
voyage.     In   witness  whereof   we 
have   sigtied   these    presents,   and 
put  the  seal  of  our  arms  there- 
unto, and  caused  the  same  to  be 
counter'iiffned    by  -        -  - 

at      the (lay  of 

anno  Domini." 


de  qu'apres  que  son  navin 

a  ete  visite  et  avant  son  depart,  il 
pretera  serment  eiitre  les  mains 
des  officiers  autorises  a  cet  etfet; 
que  le  dit  navire  appartient  a  un 
ou  plusieurs  sujets  de  dont 

I'acte  sera  mis  a  la  fin  des  presen- 
tes ;  de  menie  qu'il  gardera  et  feia 
garder  par  son  equipage,  les  or- 
donnances  et  reglemens  tnaritinus. 
et  remettra  une  liste  signee  et  con- 
firmee par  temoins,  contenant  U.-, 
nonis    et    surnoms,    les    lieux    dt- 
naissance.  et  la  Demeure  des  IVr- 
sonnes   composant    I'equipage    (k- 
son  navire,  et  de  tons  ceux  qui  ^ V 
embarqueront,   lesquels   il   no   rJ- 
cevra  pas  a  bord  sans  la  connais- 
sance   et  permission   des  officicr^ 
.-•utorises   a   ce ;    et    dans   cliaf|nc 
port  ou  havre  ou  il  entrera  a  vie 
son  navire,  il  montrera  la  presente 
permission  aux  officiers  a  cc  nutn- 
ri.ses,  et  leur  fera  un  rapport  ti- 
dele  de  ce  qui  s'est  passe  diiraiii 
son  voyage ;  et  il  porteri  les  cmi- 
leurs.  armes  et  enseignes    (de  la 
Repiihlique      Franccaisc     ou     des 
F.tats    L'nis)    durant   son   (lit   vo- 
yage.     En   temoin   de   quoi   uou- 
avons  signe  les  pre.sentes,  les  avi.iis 
fait    contresigner    par  et    y 

nvcns  fait  apposer  le  sceau  de  nos 
arnies. 

Ponnr  <)  Ic  ac 

Van  dc  (jrace,  le  ."' 


CONVENTION  OF  1800 


And  this  passport  will  be  suffi- 
cient without  any  other  paper,  any 
ordinance    to    the    contrary    not- 
withstanding ;      which      passport 
shall  not  be  deemed  requisite  to 
have   been    renewed    or    recalled, 
whatever  number  of  voyages  the 
said  ship  may  have  made,  unless 
t'.ie    shall    have    returned    home 
within  the  space  of  a  year.  Proof 
with  respect  to  the  cargo  shall  be 
certificates,  containing  the  several 
particulars  of  the  cargo,  the  place 
whence     the     ship     sailed     and 
whither  she  is  bound,  so  that  the 
forbidden  and  contraband  goods 
may  be  distinguished  by  the  cer- 
tificates;   which   certificates   shall 
have  been  made  out  by  the  officers 
of  the  place  whence  the  ship  set 
sail,  in  the  accustomed   form  of 
the  country.     And  if  such  pass- 
port or  certificates,  or  both,  shall 
have  been  destroyed  by  accident 
or  taken  away  by  force,  their  de- 
ficiency tnav  be  supplied  by  such 
other  proofs  of  ownership  as  are 
admissible  by  the  general  usage  of 
nations.      Proof   with    respect    to 
other  than  merchant  ships  shall  be 
t!ip  commission  they  bear. 

This  article  shall  take  effect 
i'-cm  the  date  of  the  signature  of 
;he  present  convention.  And  if 
from  the  date  of  the  said  signa- 
ture, any  property  shall  be  con- 
'lemned  con  .ary  to  the  intent  of 
fhe  said  convention,  before  je 
knowledge  of  this  stipulation  shall 


491 


Et  ce  passeport  suffira  sans 
autre  pie?e,  non  obstant  tout  regle- 
■nent  contraire.  11  ne  sera  pas 
exige  que  ce  passeport  ait  ete  re- 
nouvelle  ou  revoque,  quelque  nom- 
hre  de  voyages  que  le  dit  navire  ait 
pit  faire,  a  moins  qu'il  ne  soit  re- 
venu  Chez  hii  dans  I'espace  dune 
annee. 

Par  rapport  a  la  cargaison,  les 
preuvcs  seront  dcs  certificates  con- 
tf-nant  le  detail  de  la  cargaison,  du 
Iifu  d'oii  le  Batiment  est  parti  et 
de  celui  on  il  va,  de  maniere  que 
les  marchandises  defendues  et  de 
contrebande   jmissent   etre  distin- 
guees  par  les  certificats.  lesquels 
certificats  auront  ete  faits  par  les 
officiers  de  I'endroit  dou  le  navire 
sera   parti,  dans  la    forme  usitee 
dans  le  pays,  et  si  ces  passeports 
ou  certificats,   ou   les  uns   et   les 
autres  ont  ete  detruits  par  acci- 
dent, ou  enleves  de  force.  leur  De- 
faut  pourra  etre  supplee  par  toutes 
les  autres  preuves  de  propriete  ad- 
missiblcs   d'apres   I'usage   general 
des  Nations. 

Pour  les   f?atimens  autres  que 
les  navires  marchands.  les  preuves 
sernnt  la  Commission  dont  il  sont 
porteurs.      Cet    article    aura    son 
effc,  a  (later  de  la  signature  de  la 
presente  convention ;  et  si  a  dafer 
de  la  dite  signature,  des  proprietes 
sont  cond  mnees  contrairement  a 
1 'esprit  de  la  dite  convention,  avant 
qu'on    ait   connaissance    de    cette 
stipulation  la  propriete  ainsi  con- 


492  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 

be  obtained,  the  property  so  con-     damnee   sera,  sans   delai,   rendue 
(Icnined   shall,   without  delay,   be     ou  pay«je. 
restored  or  paid  for. 


Ahticle  V 

The  debts  contracted  by  one  of 
the  two  nations  with  individuals 
of  tile  other,  or  by  the  individuals 
of  one  with  the  individuals  of  the 
'>ther,  shall  be  paid,  or  the  pay- 
ment may  be  prosecuted,  in  the 
same  manner  as  if  there  had  been 
no  misunderstanding  between  the 
two  States.  But  this  clause  shall 
not  extend  to  indemnities  claimed 
on  account  of  captures  or  confis- 
cations. 


Article  VI 

Conmierce  between  the  parties 
shall  be  free.  The  vessels  of  the 
two  nations  and  their  privateers, 
as  well  as  their  prizes,  shall  be 
treated  in  their  respective  ports  as 
those  of  the  nation  the  most  fa- 
voured; and,  in  Reneral,  the  two 
parties  shall  enjoy  in  the  ports  of 
each  other,  in  re:jard  to  commerce 
and  navijjation.  the  privileges  of 
the  most  favoured  nation. 

Article  VU 

The  citizens  and  inhabitants  of 
the  United  States  shall  be  at  lib- 
erty to  dispose  b;  testament,  do- 
nation, or  othe  .kise.  of  their 
t^'oods,  moveahlf  and  iinmoveablc. 
iiolden    in    the    territory    of    the 


.'Vrticle  V 

Les  Dettes  contractees  par  lune 
des  deux  nations  envers  les  parti- 
culiers  de  I'autre,  ou  par  des  par- 
ticuliers  de  lune  envers  des  par- 
ticuliers  de  I'autre,  seront  acquit- 
t6es  ou  le  payement  en  sera  pour- 
suivi  comme  s'il  ny  avait  eu  au- 
cune  mesintelligence  entre  ks 
deux  Etats;  mais  cette  clause  ne 
s'etendra  point  aux  indemnitcs  re- 
clamees  pour  des  captures  ou  ()mir 
des  condamnations. 

Article  VI 

Le  commerce  entre  les  deux 
Parties  sera  libre:  les  vaisseaux 
des  deux  nations  et  leurs  corsaires, 
amsi  que  leu.s  prises,  seront 
traites  dans  les  ports  respectits 
comme  ceux  de  la  nation  la  plii> 
favorisee.  t.  en  general.  les  deux 
parties  jouiront  dans  les  port-; 
I'une  de  I'autre,  par  rapport  au 
commerce  et  a  la  navigation,  des 
privileges  de  la  nation  la  plus  fa- 
vorisee. 

•■Krticle  VII 

I. OS  Citoyens  et  Habifans  dos 
F.tat>;-l'nis  pourront  disposer  par 
testament,  donation  ou  aittrenuiit. 
de  leiir-^  hicns  meubles  et  itn- 
motihles  prm^erlos  dans  ic  ti-rritoirr 
Europeen  de  la  Republiqne  Fran- 


French  Republic  in  Europe,  and 
the  citizens  of  the  French  Repub- 
hc  shall  have  the  same  liberty  with 
regard    to   goods,    moveable   and 
immoveable,  holden  in  the  terri 
tory  of  the  United  States,  in  favor 
ot  such  persons  as  they  shall  think 
proper.     The  citizens  and  inhabi- 
tants of  either  of  the  two  coun- 
tries who  siiall  be  heirs  of  goods 
moveable  or  immoveable,   in   the 
other,  shall  be  able  to  succeed  ab 
mtcstato,  without  being  obliged  to 
obtam    letters    of    naturalization 
and  without  having  the  effect  of 
this   provision   contested    or    im- 
peded,  under  any   pretext   what- 
ever; and  the  said  heirs,  whether 
such  by  particular  title,  or  ab  i„. 
testato,  shall  be  exempt  from  anv 
duty  whatever  i„  both  countries 
It  IS  agreed  that  this  article  shall 
■n  no  manner  derogate  from  the 
aws  which  either  State  n,ay  now 
I'ave  in  force,  or  hereafter  may 
enact,  to  p;  event  emigration ;  and 
also  that  m  case  the  laws  of  either 
"f  the  t.vo  States  should  restrain 
strangers    from    the    exercise    of 
the  rights  of  property  with  respect 
to  real  estate,  such  real  estate  mav 
be  sold,  or  otherwise  disposed  of 
to  citizens  or  inhabitants  of   the 
country  where  it  may  be.  and  the 
other  nation  shall  he  at  libertv  to 
enact  similar  laws. 


CONVENTION  OF  1800 


493 


•xi'^ejet  lescitoyensdelaRepu- 
Wiqite  Frangaise  auront  la  meme 
faculte  a  regard  des  biens,  meu- 
t'les  et  immeubles  possedes  dans  le 
lerritoire  des  Etats-Unis,  en  fa- 

vcurde  telle  personne  que  bonleur 
semblera.     Les  citoyens  et  habi- 

tans  dun  des  deux  Etats,  qui  se- 
ront  heritiers  des  Biens,  meubles 
ou  .mmcubles  situes  dans  lautre 
Pourront  succeder  ab  intestai 
sans  qu  ,Is  ayent  besoin  de  lettres 
de  naturalite  et  sans  que  leffet  de 
cette  stipulation,  leur  puisse  etre 
contests  ou  empeche,  sous  quelque 

pretextequecesoit;etserontles 
d.ts  heritiers.  soit  a  titre  particu- 
"er.  sou  ab  ir.tcstat.  exempts  de 
tout  droit  quelconque  chex  les 
deux  nations.  II  ,st  convenu  que 
cet  article  ne  derogera  en  aucune 

mamereauxloisquisomapresem 
en   vigeur  chez  les  deux  nations 
ou    qui    pourraiem    etre   promul- 
f!:uees  a  la  suite  contre  lemi-ra- 
tion.  et  aussi  que  dans  le  cas  oiT les 
o's  de  Tun  des  deux  Etats  limite- 
raient  pour  les  etrangers  IVxcrcice 
des  droits  dc  la  propriete  s„r  les 
.mmeubles  on  pourrait  %endre  ces 
inmieubles  ou  en  disposer  autre 
nient  en  faveur  d'hnhitans  ou  de 
otoycns  du   pays   oi,   ils   seraient 
s-tues.  et  il  sera  lihre  a  I  autre  na- 
tion  d'cfablir  de  semblablcs  lois 


i 
i 


494  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


Akticle  VIII 

To    favor   commerce   on   both 
•sides  it  is  agreed  that,  in  case  a 
war   should   break    out    between 
the  two  nations,  which  God  for- 
bid, the  term  of  six  months  after 
the  declaration  of   war   shall   be 
allowed    to    the    merchants    and 
other  citizens  and  inhabitants  re- 
spectively,  on  one   side  and   tiie 
other,    during    which    time    they 
shall   be   at   liberty   to    witiidraw 
themselves,  with  their  effects  and 
moveables,  which  tiiey  shall  be  at 
liberty   to   carry,   send  away,   or 
sell,  as  they  please,   without  the 
least  obstruction;  nor  shall  their 
effects,  much  less  their  persons, 
be  seized  during  such  term  of  six 
months;   on    the   contrary,    pass- 
ports, which  shall  be  valid  for  a 
time   necessary   for  their   return, 
shall  be  given  to  them   for  t'    ir 
vessels  and  the  effects  which  they 
shall  be  willing  to  send  away  or 
carry  witii  them;  and  such  pass- 
ports   shall    be    a    safe    conduct 
against    all     insults    and    prizes 
which     privateers     may    attempt 
against  their  persons  and  effects. 
And  if  anything  be   taken   from 
them,  or  any  injury  done  to  them 
or  their  effects,  by  one  of  the  par- 
ties, their  citizens  or  inhabitants, 
within  the  term  above  prescribed, 
full  satisfaction  shall  be  made  to 
them  on  that  account. 


Article  VIII 

Pour  favoriser  de  part  d'auti 
le  commerce,  il  est  convenu  que  s 
ce  qu'a  Dieu  ne  plaise,  le  guerr 
eclatait  entre  les  deux  nations,  o 
allouera,  de  part  et  d'autre,  au: 
marchands  et  autres  citoyens  oi 
habitans  respectifs.  six  mois  apre 
la  declaration  de  guerre,  pendati 
lequel  tems  il    auront  la   facultt 
de  se  retirer  avec  leurs  effets  ei 
meubles  qu'ils  pourront  emmenL-r 
envoyer  ou  vendre,  comme  lis  ks 
voudront,    sans    le    moindrc    cm- 
pechment.    Leurs  effets,  et  encore 
moins  leurs  personnes,  ne  pourn.nt 
point,  pendent  ce  tems  de  six  mois, 
etre  saisis,  au  contraire,  on  Icur 
donnera  des  passeports  qui  seroiit 
valables  pour  le  tems  necessairc  a 
leur  retour  chez  eux ;  et  ce.s  pas>c- 
ports    seront    donnes    pour    eux, 
ainsi  que  pour  leur  batimens  et  ef- 
fets qu'ils  desireront  emmencr  ou 
envoyer.    Ces  passeports  scrviroiu 
de   sauf-conduit  contre  toute   in- 
sulte  et  contre  toute  capture  de  la 
part  des  corsaires,  tant  contre  eux 
que  contre  leur  effets;  et  si,  dans 
le  terme  ci-dessus  desigiie,  il  leur 
etait  fait  par  I'une  des  parties,  cin 
citoyens  ou  ses  habitans,  quekiue 
tort  dans  leur  personnes  ou  dans 
leurs  effets,  on   leur  en  donnera 
satisfaction  complete. 


CONVENTION  OF  1800 


Article  IX 

Neither  the  debts  due  from  in- 
dmdualsofth.  ^e  nation  to  in- 
dividuals of  th.  other,  nor  shares 

nor  monies,  whi.h  they  n«y  have' 
«n  pubhc  funds,  or  in  the  pubhc 
or  private  banks,  shall  ever  in 
any  event  of  war  or  of  national 
difference,  be  sequestered  or  con- 
hscated. 


495 


Article  XI 


Article  X 

It  shall  be  free  for  the  two  con- 
tracting parties  to  appoint  com- 
mercal  agents  for  the  protection 
of  trade,  to  reside  in  France  and 
the  Umted  States.  Either  partv 
niay  except  stich  place  as  n.av  b'e 

thought  proper  from  the  resid;nce 
of  those  agents.  Before  anv  agent 
sha  exercise  his  functions,  he 
shall  be  accepted  in  the  usual 
forms  by  the  party  to  whom  he  is 

sent;  and  when  he  sliall  have  been 
accepted  and  furnished  with  his 
exequatur,  he  shall  enjoy  the 
nghtsandprero,gativesofthesim- 

■lar  agents  of  the  mo.st  favoured 
nations. 

Article  XI 
The  citizens  of  the  French  Re- 
P"bi.c  shall  pay  in  ,he  pons 
havens,  roads,  countries,  isLds.' 
c't^  s.  and  towns  of  ,he  United 
>  ates,  no  other  or  greater  duties 
-  -niposts,  of  what  nature  soeve 


v'du^    .e  I'une  des  deux  nations 
aux  ind,vidus  de  lautre,  ne  pour- 
Td   ?"^f"'^""  '^^  de  guerre, 
ou  de  demeles  nationaux.  etre  se- 
questrees  ou  confisquees  non  plus 
I"c  les  actions  ou   fonds  quf  se 
rouveraient   dans   les    fonds   pu! 
h I'cs.   au   dans   des    banques   pu- 
hhques  ou  particulieres.  ^ 

Akticxk  X 

pouiTont?  '"'"  ^""^"^t<-^ntes 

ou.ront  nommer,  ,,o„r  pn,te,rer 

J- ;'e.oce,  des  agens  conn^^i^:^ 

le     Sr-^^",^^--^tdans 
,       ''tats-Lms;  chacune  des  ,„r 

nn  I.     ••'.T  "^^  ^  Propos.  des  lieuv 

devraefr.  ^onctions,    il 

rescuer     T'"'- '^"^ '"  f--« 
:^esQues,parlapartieche.Iaquelle 

^cceptt  et  pourvu  de  son  Erenta 

-■.'jouirad..s  droits  et  pre  o'; 

blaWes  des  nations  ,e  p,u,   f,,,. 

■\KTrCLE  XI 

r  a  ,a,.se    „e    payeront    dans    les 

or  s.     havres,     rades.     contrees, 

Ln  -■    .         ''    '"•"^'    ^'^    Etats- 

^'roits,   mipots  de  quelque  n..t,:re 


ff 


496  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


tlicy  may  be,  or  by  what  name 
soever  called,   than   those   which 
ilie  nation  most  favoured  are  or 
shall  be  obliged  to  pay;  and  they 
shall  enjoy  all  the  rights,  liberties, 
privileges,    immunities,    and    ex- 
tmptions  in  trade,  navigation,  and 
COP     -'rce,     whether    in    passing 
fri,.     one  port  in  the  said  States 
to  another,   or   in  going   to  and 
from  tiie  same  from  and  to  any 
part  of  the  world,  which  the  said 
nations  do  or  shall  enjoy.     And 
the  citizens  of  the  United  States 
shall  reciprocally  enjoy,  in  the  ter- 
ritories of  the  French  Republic  in 
Europe,  the  same  privileges  and 
immunities,  as  well  for  their  prop- 
erty and  persons  as  for  what  con- 
cerns trade,  navigation,  and  com- 
merce. 


Article  XII 

It  shall  be  lawful  for  the  citi- 
iicns  of  either  country  to  sail  witli 
their  ships  and  merchandize  (con- 
traband goods  always   excepted) 
fro.n   any  port   whatever   to  any 
port  of  the  enemy  of  the  other, 
and  to  sail  and  trade  with  their 
ships  and  merchandise,  with  per- 
fect security  and  liberty,  from  the 
t-ountrics,    ports,    and    places    of 
those  who  are  enemies  of  both,  or 
of  either  party,  without  any  op- 
position   or   disturbance    whatso- 
ever, and  to  pass  not  only  directly 
from  the  places  and  ports  of  the 


qu'ils  puissent  etre,  quelque  n;- 
qu'ils  puissent  avoir,  que  ceux  qi 
les  nations  les  plus  favorisees  soi 
ou  seront  tenues  de  payer;  et  i 
jouiront  de  tous  les  droits,  libei 
tes,  privileges,  immunites,  et  e> 
emptions  en  fait  de  negoce,  nav 
gation  et  commerce,  soit  en  pas 
sant   d'un  port  des  dits   Etats 
un  autre,  soit  en  y  allant  ou  ci 
revenant  de  quelque  partie  ou  pou 
quelque  partie  du  monde  qm-  a 
soit,    dont    les    nations    susditc: 
jouissent  ou  jouiront.    Et  rcciiiro 
quement,  les  citoyens  des  lunts 
Unis  jouiront,  dans  le  Territoire 
de  la  Republique  Fran(;aise  en  Eu- 
rope,  des  memes  privileges,   im- 
munites, tant  pour  leurs  biens  et 
leurs  personnes,  que  pour  ce  qui 
concerne  le  negoce,  la  navigation 
et  le  commerce. 

AkTICLE  XII 

Les  citoyens  des  deux  nations 
pourront  conduire  leurs  vaisseaux 
et    marchandises     (en    cxccj^tanl 
toil  jours  la  contrchandc)  de  tout 
port    quelconque,    dans   un   autre 
port    appartenant    a    I'ennemi    dt- 
I'autre  nation ;  ils  pourront  navi- 
guer  et  commerccr  en  toute  libertc 
et  securite,  avec  leurs  navire  set 
marchandises,  dans  les  pays,  ports 
et   places  des   ennemis   des   deux 
parties  ou  de  I'une  ou  de  I'autre 
partie,  sans  obstacles  et  sans  en- 
traves,  et  non  seulement  passer  di- 
rectement  des  places  et  ports  de 


CONVENTION  OF  1800 


enemy  aforementioned  to  neutral 
pons  and  places,  but  also  from 
one  place  belonging  to  an  enemy 
to  another  place  belonging  to  an 
enemy,  wiiether  they  be  under  the 
jurisdiction  of  the  same  Pov,tr  or 
under  the  several,  unless  such 
ports  or  places  shall  be  actually 
blockaded,  besieged,  or  invested. 


497 


And  whereas  it  frequently  hap- 
pens that  vessels  sail  for  a  port  or 
place  belonging  to  an  enemy  with- 
out   knowing    that    the    same    is 
either  besieged,  blockaded,  or  in- 
vested, it  is  agreed  that  every  ves- 
sel   so    circumstanced     may     be 
turned  away   from  such  port  or 
place,   but   she   shall   not   be   de- 
tained, nor  any  part  of  her  cargo, 
if  not  contraband,  be  confiscated, 
unless,  after  notice  of  such  block- 
ade or  investment,  she  shall  again 
attempt  to  enter;  but  she  shall  be 
permitted  to  go  to  any  other  port 
or  place  she   shall   think  proper. 
Nor  shall  any  vessel  of  either  that 
nin.y  have  entered  into  such  port 
or  place  before  the  same  was  ac- 
tual'y  besieged,  blockaded,  or  in- 
vested by  the  other,  be  restrained 
froM  quitting  such  place  with  her 
cargo,  nor  if  found  therein  after 
the   reduction   and    surrender   of 
such  place  shall  such  vessel  or  her 
cargo  he  liable  to  confiscation,  but 
tliey  shall  be  restored  to  the  own- 
ers thereof. 


1  ennemi  sus  mentionnes,  dans  les 
ports  et  p.aces  neutres,  mais  en- 
core de  toute  place  appartenant  a 
un  ennemi  dans  toute  autre  place 
appartenant  a  un  ennemi,  qu'elle 
sou  ou  ne  soit  pas  soumise  a  la 
"lenic   juri.sdi- tion,   a   moins   que 
ces    places    ou    ports    ne    soyent 
recllenient  bloques.  assieges  ou  in- 
vestis. 

f-t  dans  le  cas,  coinme  il  arrive 
'^ouvMU,  ou  les  vaisseaux  feraient 
voile  pour  une  place  ou  port  ap- 
partenant a  un  ennemi.  ignorant 
qu  >Is    sont  blncques,  assieges   ou 
'nvestis,  il  est  convenu  que  tout 
nav.re  qui  se  trouvera  dans  une 
pareille  circonstance,  sera  detourne 
de  cette  place  ou  port,  sans  qu'on 
Puisse  le  retener  ni  confisquer  au- 
cune   partie   de    sa   cargaison    (« 
moms  qu'elle  ne  soit  de  contre- 
bande,   ou   qu'il  ne  soit  prouvee 
que  le  dit  navirc.  aprts  avoir  etc 
avert,  du  hlncus  ou  investissement 
a    roulu    rentrer   dans    ce    mime 

/■or/)  .•  mais  illui  sera  permis  d'al- 
ler  dans  tout  autre  port  ou  place 
qu'iI   jugera   convenable.      Aticun 
navire  de  Tune  ou  de  Tautr.  na- 
tion, emre  dans  un  port  au  place 
avant  qu'ils  ayent  ete  reellenient 
Woques,  assieges  ou   investis  par 
1  autre,  ne  pourra  etre  empeche  de 
sortir  avec  sa  cargaison:  s'il  ^'y 
trouve.  lorsqtie  la  dite  place  sera 
rendue.  le  navire  et  sa  cargaison 
ne  pourront  etre  confisques,  mais 
seront  remis  aux  propr^etaires. 


If 

r. 

f  '' 


498  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


Aeticle  XIII 

In  order  to  regulate  what  shall 
be   deemed    contraband   of    war, 
there  shall    be   comprised,   under 
that    denomination,    gun-powder, 
saltpetre,    petards,     match,     ball,' 
bombs,  grenades,  carcasses,  pikes, 
halberts,    swords,    belts,    pistols, 
holsters,  cavalry-saddles  and  fur- 
niture, cannon,  mortars,  their  car- 
riages and  beds,  and  generally  all 
kinds   of    arms,    ammunition   of 
war,  and  instruments  fit  for  the 
use  of  troops ;  all  the  above  arti- 
cles, whenever  they  are  destined 
to  the  port  of  an  enemy,  are  here- 
by declared  to  be  contraband,  and 
just  objects  of  confiscation;  but 
the  vessel  in  which  they  are  laden, 
and  the  residue  of  the  cargo,  shall 
be  considered  free,  and  noi  in  any 
manner  infected  by  the  prohibited 
goods,  whether  belonging  to  the 
same  or  a  different  owner. 


Article  XIII 

Pour  regler  cc  qn'on  entendra 
par  contrebande  H.   i..eri':,  jeront 
compris  sous  .arc   denomiu,.t; 
la  poudre,  le  ss  iOt-?,  Its  petar   ,. 
nieches,    balles,    '»J,ts.    !>onili  . 


Ii.tI 


n'lf- 


Article  XIV 

It  is  hereby  stipulated  tliat  free 
ships  shall  give  a  freedom  to 
Roods,  and  that  everything  shall 
be  deemed  to  be  free  and  exempt 
which  shall  be  found  on  board  the 
ships  belonging  to  the  citizens  of 
either  of  :hr  contracting  parties, 
although  the  whole  lading,  or  any 
part  thereof,  should  appertain  to 
the  fneniies  of  either,  contraband 


grenades,  carcasses,  , 
bardes,  epees,  ceinturons,  pistolets, 
foureaux,  selles  de  cavaleric,  har- 
nais,  canons,  mortiers  avec  kurs 
affuts,  et  generalement  toutes  ar- 
mes  et  munitions  de  guerre  et  uii- 
tensiles,    a    I'usage    des    troupes. 
Tous  les  articles  ci-dessus,  t  )utes 
les  fois  qu'ils  seront  destines  pour 
le  port  d'un  ennemi,  sont  declares 
de  contrabande  et  justement  so  i- 
mis   4  la  confiscation.     Mais   le 
batiment    sur    lequel    ils    etaicnt 
charges,  ainsi  que  le  reste  de  la 
cargaison,  seront  regardes  comine 
libres,  et  ne  pourront  en  aucutie 
maniere  etre  vicies  par  les  mar- 
chandises    de    contrebande,    soit 
qu'ils  appartiennent  a  un  meme  ou 
a  differens  proprietai«-es. 

Article  XIV 

11  est  stipule  par  le  present 
traite  que  les  batin.en^  libres  as- 
sureront  egalement  la  liberte  des 
marchandises,  et  qu'on  iugera  li 
bres  toutes  les  choses  qui  se  trnu- 
veront  a  bord  des  navires  app.irte- 
nant  aux  citoyens  d'une  d.s  parties 
contractantes,  quand  meme  !<■ 
chargement  ou  partie  d'icelui  ap- 
partiendrait  aux  enneniis  de  Iiiiic 


CONVENTION  OF  1800 


499 


goods  being  always  excepted.  It 
is  also  agreed,  in  like  manner,  that 
the  same  liberty  be  extended  to 
persons  who  are  on  board  a  free 
ship,  with  this  effect,  that  al- 
though they  be  enemies  to  either 
party,  they  are  not  to  be  taken  out 
of  that  free  ship,  unless  they  are 
soldiers  and  in  actual  service  of 
the  enemy. 


Article  XV 

On  the  contrary,  it  is  agreed 
that  whatever  shall  be  found  to 
be  laden  by  the  citizens  of  either 
party  on  any  ship  belonging  to  the 
enemies  of  the  other,  or  their  citi- 
zens, shall  be  confiscated  without 
distinction  of  goods,  contraband 
or  not  contraband,   in  the   same 
manner  as  if  it  belonged  to  the 
enemy,    except    such    goods    and 
merchandizes    as    were    put    on 
board  such  ship  before  the  declar- 
ation of  war.  or  even  after  such 
declaration,  if  so  be  it  were  done 
without  knowledge  of  such  dcc- 
Ipration ;  so  that  the  goods  of  the 
citizens  of  either  party,  whether 
they  be  of  the  nature  of  such  as 
are     prohibited,     or     otherwise, 
which,  as  is  aforesaid,  were  put 
on  board  any   ship  belonping  to 
an  enemy  before  the  war.  or  after 
the  declaration  of  the  same,  with- 


des  deux ;  bien  entendu  neanmoins 
que  la  contrebande  sera  toujours 
excepte.    II  est  egalement  convenu 
que  cette  meme  liberte  s'etendra 
aux  personnes  qui  pourraient  se 
trouver  a  bard  du  batimen  libre. 
quand  meme  elles  seraient  enne- 
mies  de  Tune  de  de'^x  parties  con- 
tractantes,    et    elles    ne    pourront 
etre  enlevees  des  dits  navires  li- 
bres,  a  moins  qu'elles  ne  soyent 
niilitaires  et  actuellement  au  ser- 
vice de  I'ennemi. 

Article  XV 

On  est  convenu,  au  contraire 
que  tout  ce  qui  se  trouvera  charge 
par  les  citoyens  respectifs,  sur  des 
navires  appartenant  aux  ennemis 
de  I'autre  partie  ou  a  leurs  sujets, 
sera   confisque,    sans   distinctions 
des    marchandises    prohibees    ou 
non  prohibees,  ainsi  et  de  meme 
que  si  elles  appartenaient  a  I'en- 
nemi, a  I'exception  toutefois  des 
effets  et  marchandises  qui  auront 
ete  mis  a  bord  des  dits   navires 
avant  la  declaration  de  guerre,  ou 
meme  apres  la  dite  declaratir 
au  moment  du  chargemcnt,         i 
pu  I'ignorer;  de  maniere  que  les 
marchandises    des    citoyens    des 
deux  parties,  soit  qu'elles  se  trnu- 
vent  du  nombre  de  celles  de  con- 
trebande ou  autrenient,  lesquelles, 
comme  il  vient  d'etre  dit.  auront 
ete  inises  a  hord  d'un  vaisscau  ap- 
parteaint    a    rennenii    avant    la 


w 

'  i 

^^ 

•■■! 


50()   TU,.:..vriKS  BKTVVEEN  THE  UNITED  STATES  AND  FRANCE 


out  tlic  knowledge  of  it,  shall  no 
ways  be  liable  to  confiscation,  but 
shall   well  and  truly  be  restored 
without   delay  to  the   proprietors 
demanding   (he  same;   but   so  as 
tliat   if  the  said  merchandizes  be 
cunirahand.    it    shall    not    be   any 
ways  .awfnl  fo  carry  them  after- 
wards  to  any  ports   belonging  to 
the  i.ieniy.     The  two  contracting 
parties  a-rcc  that  the  term  of  two 
months    being    passed    after    the 
declaration  of  war.  their  respec- 
tive citizens,  from  whatever  part 
<>»  the  world  they  come,  shall  not 
plead  the  ignorance  mentioned  in 
this  article. 


Articlk  X\'I 

The   merchant   ships   belonging 
to  the  citizens  of  either  of  the  con- 
tracting  i,arties,    which    shall    be 
buuml  to  a  port  of  the  enemy  of 
o"^-  of  i!ie  parties,  and  concern- 
mg  whose  voyage  and  the  articles 
ol  their  cargo  there  shall  be  just 
gromuls  of  suspicion,  shall  be  ob- 
liged to  exhibit,  as  well  upon  the 
I"!,'li  seas  as  in  the  ports  or  roads, 
"■>t  only  their  passports,  but  like- 
wise   i:.     •    certificates,    showing 
that    tlieir  goods  are   not   of   the 
quality  of  those  which  are  speci- 
'"•'I  '"  he  contraband  in  the  thir- 
'•■"">  article  of  the  present  con- 
vention. 


K'li' '  if.  ou  nieme  aprts  ia  dite 
claration  lorsqu'on  I'ignorait. 
seront,  en  aucune  maniere,  su 
tes  a  confiscation,  niais  ser 
fidelenient  et  de  bonne  foi  rendi 
sans  delai.  a  leurs  proprietaires , 
les  reclameront:  bien  enten 
neanmoins  qu'il  ne  soit  pas  pen 
<ie  porter  dans  les  ports  ennei) 
l(s  marchandises  qui  seront 
contrebande.  Les  deux  p:,,t, 
contractantes  conviennent  (|iu- 
terme  de  deux  niois  passe  d,-,,,; 
la  declaration  de  guerre.  Ieur<  dt 
yens  respectifs.  de  quelque  part 
du  monde  qu'ils  vicnnent,  nc  [.„i, 
ront  plus  alleguer  Tignorance  .in, 
'I  est  question  dans  le  presci 
article. 

Article  a\'I 

Lfs  navires   marchamis  ai)par 
tenant  a  ues  citoyens  de  l„n,.  oi 
d'autre  des  deux  parties  cn-rar 
tantes,  lorsqu'ils  voudront  pa>se: 
dans  le  port  de  IVnnemi  dr  Wuk 
des  deux  parties,  et  q„e  le„r  vo- 
>age  ainsi  qne   les  effets  de  kur 
cargaison  pourmnt  doiuu  r  ,!c  ,„,. 
tes  soupgons.  les  dits  navin.  se- 
ront  obliges   dexhiber   en   pleine 
nier.    comnie    dans    les    p,,rt.   „„ 
rades,  non  seulement  leiir<  pa-se- 
Ports,    mais    encore    leurs   certifi- 
cats   piouvant   que  ces   uTets  w 
sont  point  de  la  mcme  espece  ,,„e 
ceux  de  contrebande  specific^  ,i,in. 
■article  treize  de  la  presente  cm- 
vention. 


-•~^>>m^mmm:. 


'^'^NVENTION  Oh   1800 


Article  XVII 

And  that  captures  on  light  sus- 
picions may  be  avoided,  a.id  i,-- 
juries  thence  arising  prevented,  it 
is  agreed    that    when    c.ie   party 
shall  be  engaged  in  war,  and  the 
other  party  be  neuter,  the  ships  of 
the   neutral   party   shall    be    fur- 
nished with  passports  similar  to 
that  described  in  the  fourth  arti- 
cle,  that   it   may  appear   thereby 
that  the  ships  really  belong  to  the 
citizens  of  the  neutral  party ;  they 
shall  be  valid  for  a.,v  number  of 
voyages,    but    shall    be    renewed 
every  year;  that    is,    if   the   ship 
happens   to   return   home    in   the 
space  of  a  year.     If  th»  ships  are 
!"'ien.  they  shall  be  provided  not 
only    w.t^      -e    passports    above 
mentioned.  „at  also  with   certifi- 
cates similar  to  those  described  in 
the  same  article,  so  that  it  mav  be 
known    V  .ether    thev   carrv  'any 
contraband  goods.   No  other  paper 
shall   Ik.   required,  any   usage   or 
ordinance  to  the  contrary  notwith- 
standing.   And  if  it  shall  not  ap- 
pear from  the  said  certificates  that 
there   are    contraband    g,K)ds    on 
board,  the  ships  shall  be  permitted 
to  proceed  on  their  voyage     If  it 
shall  appear  from  the  certificates 
that  there  are  contraband  goods 
on  fward  any  such  ship,  and  the 
--nimander  of  the  same  shall  offer 
to  deliver  them  up.  the  offer  shall 
h*-  .<ccpptPd.  and  the  ship  shall  be 
■■•t  lit«-rty  to  pursue  its  vovage  un- 


501 


Article  XVII 


Et  afin  d'eviter  des  captures  sur 
des  soupgons  fri voles,  et  de  pre- 
vemr  les  dommages  qui  en  resul- 
tent.  ,1  c-st  convenu  que,  quand  une 
(It's  deux   parties  sera  en  guerre 

etiamrcneutre,  lesnaviresdela 
Partie   ncutre   seront  pourvus   de 
Passeports  semblables  a  ceux  spe- 
c-he. dans  larticle  quatre,  de  ma- 
n'^Tt-  qu-il  ,,uisse  par  la  apparaitre 
que  les  nav.res  appartiennent  veri- 
'ahlement  i  ,a  partie  neufrg      Ces 
passeports  seront  valides  pour  un 
"■'"'hre   quelconque   de   voyages- 
>"ais  il  seront  renouveiles  cimque' 
annee.  si  le  navire  retourne  chez 
hii  dans  lespace  d'une  annee      Si 
CCS  navires  sont  charges,  il  s-ront 
pourvus  non  seulement  des  passe- 
ports sus  mcntionnes  niais  aus<^ 
de    certificats    semblables   a    ceux 
nientionnes   au   meme  article    de 
nmniere  que  Ton  puis.se  connaitre 
s  '■  y  a  a  bord  dts  marchandises 
de  contrebande.     II  ne  sera  exi-e 
aucune  autre  piece,   n..n   obstant 
tous    u.sages    et    reglemens    con- 
traires:  et  s'il  napparait  pas  par 
ces  certificats  qui!  y  ait  des  mar- 
chandises  de  contrebande  .i  bord 
les   navires   seront   laisses  a   leur 
destination.  Si.  au  contraire.  il  ap- 
parait,  pai   ces  certificats.  q„e  Ics 
d.ts   navire.   ayent    des   marchan- 
dises   do  contrebande   a   bord,    et 
que  lo  commandant  offre  de  les  de- 
hvrer.  Toffre  sera  acceptee.  et  le 
navire    sera    remis    en    liherte    de 


11  -V^ 


REATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


less  the  quantity  of  the  contraband 
goods  be  greater  than  can  conve- 
niently be  received  on  board  the 
ship  of  war  or  privateer,  in  which 
case  the  ship  may  be  carried  into 
port  for  the  delivery  of  the  same. 


If  any  ship  shall  not  be  fur- 
nished with  such  passport  or  cer- 
tificates as  are  above  required  for 
the  same,  such  case  may  be  ex- 
amined by  a  proper  judge  or  tri- 
bunal, and  if  it  shall  appear  from 
other   documents   or   proofs   ad- 
missible by  the  usage  of  nations, 
that  the  ship  belongs  to  the  citi- 
i^ens  of  the  neutral  party,  it  shall 
not  be   confiscated,   but   shall   be 
released  with  her  cargo   (contra- 
band goods  excepted)  and  be  per- 
mitted to  proceed  on  her  voyage. 
If  the  master  of  a  ship  named  in 
the  passport  should  happen  to  die, 
or  be  removed  by  any  other  cause, 
and  another  put  in  his  place,  the 
ship  and  cargo  shall  nevertheless 
be  equally  secure,  and  the  passport 
remain  in  full  force. 


poursuivre  son  voyage;  a  mo 
que  la  quantite  de  marchandi; 
de  contrebande  ne  soit  trop  gran 
pour  pouvoir  etre  prise  conver 
blement  a  bord  du  vaisseau 
guerre  ou  corsaire ;  dans  ce  cas 
navire  pourra  etre  amene  dans 
port  pour  y  delivrer  la  dite  ma 
chandise. 

Si  un  navire  est  trouve  sai 
avoir  le  passeport  ou  les  certil 
cats  ci-dessus  exiges.  I'afTaire  set 
examinee  par  les  juges  ou  tribi 
naux  competens ;  et  s'il  constc  pa 
d'autres  documens  ou  preuves  ad 
missibles  par  I'usage  des  nation: 
que  le  navire  appartient  a  des  cito 
yens  de  la  partie  neutre,  il  ne  str; 
pas  condamne.  et  il  sera  reiiiis  n 
libcrte  avec  son  chargenietit.  I: 
contrebande  exceptee,  et  aura  h 
liberte  de  poursuivre  sa  route. 

Si  le  capitaine  nomme  daiw  le 
passeport  du  navire  venait  a  mou- 
rir.  ou  a  etre  ote  par  toute  autre 
cause,  et  qu'un  autre  fut  noinnie 
a  sa  place,  le  navire  et  sa  car- 
gaison  n'en  seront  pas  nioin^  ^■n 
surete,  ct  le  passeport  denieuara 
dans  toute  sa  force. 


Aktici.f:  XVIII 

If  the  ships  of  the  citizens  of 
either  of  the  parties  shall  be  met 
with,  either  .sailing  along  the 
coasts  or  on  the  high  seas,  by  any 
ship  of  war  or  privateer  of  the 
other,    for   the   avoiding   of   any 


Article  XV^II 

^  Si  les  batimens  des  citoyeiis  de 
I'une  ou  I'autre  nation  sonf  nn- 
contr«?s  le  long  des  cotes,  on  en 
pleine  mer.  par  quelques  vai'-seaux 
de  guerre  ou  corsaires  de  {'autre ; 
pour  pr<?venir  tout  d^sordre.  les 


CONVENTION  OF  1800 


disorder  the  said  ships  of  war  or 
privateers    shall    remain    out    of 
cannon-shot,  and  may  send  their 
boats  on  board  the  merchant  ship 
which  they  shall  so  meet  with,  and 
may  enter  her  to  the  number  of 
two  or  three  men  only,  to  whom 
the  master  or  commander  of  such 
ship  shall  exhibit  his  passport  con- 
cerning the  property  of  the  ship, 
made  out  according  to  the  form 
prescribed   in  the    fourth  article. 
And  it  is  expressly  agreed  that  the 
neutral  party  shall  in  no  case  be 
required  to  go  on  board  the  ex- 
amining vessel  for  the  purpose  of 
exhibiting  his  papers,  or  for  any 
other  examination  whatever. 


Article   XIX 

It   is  expressly  agreed  by   the 
contracting  parties  that  the  stipu- 
lations above  mentioned,  relative 
to  the  conduct  to  be  observed  on 
the  sea  by  the  cruisers  of  the  bel- 
ligerent party  towards  the  ships 
of  the  neutral  party,  shall  be  ap- 
plied only  to  ships  sailing  without 
convoy;  and  when  the  said  ships 
shall  be  convoyed,  it  being  the  in- 
tention of  the  parties  to  observe 
all  the  regard  due  to  the  protec- 
tion of  the  flag  displayed  by  pub- 
lic ships,  it  shall  not  be  lawful  to 
visit  them;   but  the   verbal   dec- 
laration of  the  commander  of  the 
convoy,  that  the  ships  he  convoys 
belong  to  the  nation  whose  flag  he 


503 

dits  vaisseaux  ou  corsaires  se  tien- 
dront  horo  de  la  portee  du  canon 
et  enverront  leur  canot  a  bord  du 
navire  marchand  qu'ils  auront  ren- 
contre:   ils    n'y   pourront    entrer 
qu'au   nombre  de  deux  ou   trois 
hommes,  et  demander  au  patron 
ou  capitaine  du  dit  navire,  exhibi- 
tion du  passeport   con^emant   la 
propriete     du     dit     navire,     fait 
d'apres  la  fonnule  prescrite  dans 
I'article  quatre,  ainsi  que  les  cer- 
tificats  sus  mentionnes  relatifs  a  la 
cargaison.      II    est    expresseraent 
convenu  que  le  neutre  ne  pourra 
etre   contraint   daller   a   bord   du 
vaisseau  visitant  pour  v  faire  I'ex- 
hibition  demandee  des'  papiers  ou 
pour  toute  autre  information  quel- 
conque. 

Article  XIX 

II  est  expressement  convenu  par 
les  parties  contractantes,  que  les 
stipulations  ci-dessus,   relatives  a 
la  conduite  qui  sera   tenue  a  la 
mer  par  les  croiseurs  de  la  partie 
belligeranto,   envers    les   batimens 
de  la  partie  neutre,  ne  s'applique- 
ront    qu'aux    batimen=    naviguant 
sans  convoi ;  et  dans  le  cas  oil  les 
dits   batimens    seraicnt   convoyes, 
lintention  des  parties  etant  d'oh- 
server  ton.  Ics  egards  dus  a  la  pro- 
tection du  pavilion  abore  sur  Ics 
vaisseaux  publics,  on   ne   pourra 
point  en  fain-  la  visite      Mais  la 
<i<rlar,-ition    virbalc   du    comman- 
dant (le  I'escDrte,  que  les  navires 
de  son  convoi  appartiennent  a  la 


ki 


i 


504  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


carries,  and  that  they  have  no 
contraband  goods  on  board,  shall 
be  considered  by  the  respective 
cruisers  as  fully  sufficient,  the  two 
parties  reciprocally  engaging  not 
to  admit,  under  the  protection  of 
their  convoys,  ships  which  shall 
carry  contraband  goods  destined 
to  an  enemy. 


nation  dont  ils  portent  le  pavillot 
et  qu'ils  n'oiit  aucune  contraband 
a  bord,  sera  rcgardee  par  les  croi 
seurs  respectifs  comme  plcinc 
ment  suffisante ;  les  deux  partie 
s'engageant  reciproquement  a  n< 
point  admettre  sous  la  protectioi 
de  leur  convoi,  des  batimens  qu 
porteraient  des  marchandises  pro- 
hibees  a  une  destination  enneniic. 


Article  XX 

In  all  cases  where  vessels  shall 
be    captured    or   detained,    under 
pretence  of  carrying  to  the  enemy 
rontralxind  goods,  the  captor  shall 
give    a    receipt    for    such    of    the 
papers  of  the  vessel  as  he  shall 
retain,  which  receipt  shall  be  an- 
nexed to  a  descriptive  list  of  the 
said  papers ;  and  it  shall  be  unlaw- 
ful   to    break    up    or    open    the 
hatches,     chests,     trunks,     casks, 
bales,  or  vessels  found  on  board, 
or  rcnuive  the  smallest  part  of  the 
goods,  unless  the  lading  be  brought 
on  shore  in  presence  of  the  com- 
petent oflicers,  and  an  inventory 
be    made    hy    fheni    of    the    said 
goods;  nor  shall  it  be  lawful  to 
sell,    exchange,    or    alienate    the 
same  in  any  manner,  imless  there 
shall    have   been    lawful    process, 
and  the  competent  judge  or  judges 
siiall     have    pronounced    against 
such  goods  sentence  of  confisca- 
tion, saving  always  the  ship  and 
tin-  other  troods  which  it  contains. 


Article  XX 
I->ans  le  cas  ou  les  batimens  se- 
ront  pris  ou  arr^tes,  sous  pretexte 
de  porter  a  I'ennemi  quelquarticle 
dc  contrebande,  le  capteur  donncra 
un  regu  des  papiers  du  Iwtiincnt 
quil    retiendra,    lequel    rc(cu    sera 
joint  a  une  liste  enonciative  des 
dits  papie.s:  il  ne  sera  point  per- 
nns  de  forcer  ni  d'ouvrir  les  ecou- 
tiiles,  coffres,  caisses.  caissons,  hal- 
lo's, ou  vases  trouves  a  bord  du  dit 
navire.    ni    denlever    la    moindrc 
chos,  des  effets.  avant  que  la  car- 
gaison  ait  ete  debarquee  en  ,,rr- 
sence  des  officiers  competens,  qui 
feront  un  inventaire  des  dits  etTet ; 
■Is  ne  pourront.  en  aucune  manii-re' 
etrc  vendus,  echanges  ou  alia.os,  a 
"loms  qu'apres  une  procedure  le- 
gale, le  juge  ou  les  jugcs  compe- 
tens n'ayent  porte  contre  les  dits 
effets  sentence  de  confiscation  t,-,, 
exceptant    toujours   Ir    navire   ct 
les  autres  objcts  quit  conticnt.) 


CONVENTION  OF  1800 


Article  XXI 

And  that  proper  care  mav  be 
taken  of  the  vessel  and  cargo,' and 
embezzlement     prevented,     it     is 
agreed  that  it  shall  not  be  lawful 
to  remove  the   master,  connnan- 
der,   or  supercargo   of   any  cap- 
tured ship  from  on  board  thereof 
either  during   the   time   the   ship 
"•ay  be  at  sea  after  her  capture 
or      pending      the      proceedings' 
agamst  her  or  her  cargo,  or  any- 
thmg  relative  thereto.    And  in  all 
cases  where  a  vessel  of  the  citi- 
zens of  either  party  shall  be  cap- 
tured or  seized,  and  held  for  ad- 
judication, her  officers,  passen-er. 
and    crew    shall     be     hospitablV 
treated.     They  shall   not   be  im'- 
pnsoned  or  deprived  of  anv  part 
of  their  wearing  apparel,  nor  of 
the  possession  and   use   of   th<ir 
money,  not  e.xceeding  for  the  cai,- 
tain,   supercargo,    and    mate    five 
hundred  dollars  each,  and  for  the 
sailors  and  passengers  one   hun- 
dred dollars  each. 


505 

Article  XXI 

Pour  que  le  batiment  et  la  car- 
ga.son  soyent  surveilles  avec  soin 
et  pour  empecher  les  degats,  il  est 
arrete  que  le  patron,  capitaine  ou 
■subrecargue  du  navire  capture,  ne 
pourront  etre  eloignes,  du  bord. 
''O't  pendant  que  le  navire  sera  ^-n 
""■'■"•  ^P^^s  avoir  ete  pris  soit 
Pendain  les     .oc.,„,,,  ;„^  '  ;- 

ront  avoir  heu  contre  lui.  sa  car- 

gajsonouquelque  chose  y  relative 

Dans  lecas  ou  .»  navire  appar- 

te-ant  a  des  citoyens  de  luile  ou 

del  autre  partieserait  pris.  saisiet 
retenu  pour  etre  juge.ses  officers 
l^assagers      et      equipage      seron; 

traites  avec  lu,manite;ilsne  pour- 
ront etre  emprisonnes.  ni  depouil- 
'es  de  leurs  vetemens.  ni  de  I'-.r- 
Sent  a  leur  usage,  qui  „,.  ,„,„,,., 
exceder.  pour  le  capitaine.  le  sul.- 
recargue.  et  le  second,  cinq  cents 

dolarschacun;etpour,e'mate- 
^ot^  et  passagers.  cent  dollars  cha- 


Article  XX II 

It  is  further  agreed  that  in  all 
cases   the   established  courts    fur 
Pn^e   causes,    in   the    country   to 
which    the    prizes    mav    be    con- 
ducted, shall  alone  take  cognizance 
of  them.   And  whenever  such  tri- 
bal of  either  of  the  parties  shall 
pn-nounce  judgment  a.gainst  anv 
'"'"'     "'    goods,     or     propert; 


ARTin.E  XXII 


1    St  de  plus  convenu  que  dans 
'ou.s  les  cas  les  tribunau.x  etablis 
P<'"r  Ics  causes  de  prises  dans  les 
pays  0.1  les  prises  seront  conduites 
Ponrrontseuls  en  prendre  connais- 

'"  ":'^""«1  'l*-  ''""e  ou  de  I'autre 
Part.c  prononce  contre  quelques 
"avires  „„  marchandises  ou  pro- 


*i 

il 


506  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


claimed  by  the  citizens  of  the 
other  party,  the  senti  ice  or  decree 
shall  mention  the  re  tsons  or  mo- 
tives on  which  the  same  shall  have 
been  founded,  and  an  authenti- 
cated copy  of  the  sentence  or 
decree,  and  of  all  the  proceedings 
in  the  case,  shall,  if  demanded,  be 
delivered  to  the  commander  or 
agent  of  the  said  vessel,  without 
any  delay,  he  paying  the  legal 
fees  for  the  same. 


prietes  reclamees  par  des  citoyer 
de  I'autre  partie,  la  sentence  o 
decret  fera  mention  des  raison 
ou  motifs  qui  ont  determine  c 
jugement,  dont  copie  authentiquc 
ainsi  que  de  toute  la  procedure  ^ 
relative,  sera,  a  leur  requisition 
delivree,  sans  delai,  au  capitaitu 
ou  agent  du  dit  navire,  moyennani 
le  payement  des  frais. 


Article  XXIII 

And  that  more  abundant  care 
may  be  taken  for  the  security  of 
the  respective  citizens  of  the  con- 
tracting  parties,   and   to   prevent 
their    suffering    injuries    by    the 
men-of-war  or  privateers  of  either 
party,  all  commanders  of  ships  of 
war  and  privateers,  and  all  others 
the  said  citizens,  shall  forbear  do- 
ing any  daniaage  to  those  of  the 
other   party,   or   committing   any 
outrage  against  them,  and  if  they 
act  to  the  contrary  they  shall  be 
punished,  and  shall  also  be  bound 
in   their   persons   and   estates   to 
make  satisfaction  and  reparation 
for  all  damages  and  the  interest 
thereof,   of   wiiatever  nature  the 
said  damages  niav  be. 

For  this  cause  all  commanders 
of  privateers,  before  they  receive 
their  commissions,  shall  hereafter 
be  obliged  to  give,  before  a  com- 
petent judge,  sufficient  security  by 


Article  XXIII 

Et  afin  de  pourvoir  plus  efti- 
cacement   a   la    surete   respective 
des  citoyens  des  deux  parties  con- 
tractantes,   et   prevenir   les    torts 
qu'ils  auraient  a  craindre  des  vais- 
seaux  de  guerre  ou  corsaires,  dc 
Tune  ou  I'autre  partie,  tons  com- 
mandans  des  vaisseaux  de  gueire 
et  de  corsaires,  et  tons  autres  cito- 
yens  de   Tune   des   deux   parties. 
sabstiendront   de   tout   domniage 
envers  les  citoyens  de  I'autre  et 
de  toute  insulte  enirs  leurs  per- 
sonnes.  S'ils  faisaient  le  contraire. 
ils  seront  punis,  et  tenus  a  donncr, 
dans  leurs  personnes  et  proprietcs, 
satisfaction  et  reparation  pour  Ics 
dommages,  avec  interet,  de  qud- 
que  espece  que  soyent  les  dits  dutii- 
mages. 

A  cet  eflFet,  tons  capitaines  de 
corsaires,  avant  de  recevoir  leurs 
commissions,  s'obligeront.  devaiil 
un  juge  competent,  a  donner  une 
Karan(i>'  an  moins  par  denx  can- 


at  least  two  responsible  sureties 
who  have  no  interest  in  the  said 
privateer,  each  of  whom,  together 
with  the  said  commander,  shall  be 
jointly  and  severally  bound  in  the 
sum  of  seven  thousand  dollars  or 
thirty-six  thousand  eight  hundred 
and  twenty  francs,  or  if  such  ships 
be  provided  with  above  one  hun- 
dred and  fifty  seamen  or  soldiers 
m  the  sum  of  fourteen  thousand 
dollars,  or  seventy-three  thousand 
SIX  hundred  and  forty  francs,  to 
satisfy  all  damages  and  injuries 
which  the  said  privateer,  or  her 
officers,  or  men,  or  any  of  them 
may  do  or  commit  during  their 
cruise,  contrary  to  the  tenor  of 
this  convention,  or  to  the  laws  and 
instructions    for   regulating  their 
conduct;  and  further,  that  in  all 
cases  of  aggression  the  said  com- 
mission shall  be  revoked  and  an- 
nulled. 


CONVENTION  OF  IfiOO 


507 


Article  XXIV 

When  the  ships  of  war  of  the 
two  contracting  parties,  or  those 
belonging  to  their  citizens  which 
are  armed  in  war.  shall  be  admit- 
ted to  enter  with  their  prizes  the 
ports  of  either  of  the  two  parties, 
the  said  public  or  private  ships,  as 
well  as  their  prizes,  shall  not  be 
obliged  to  pay  any  duty  either  to 
the    officers    of    the    place,    the 
judges,  or  any  others;  nor  shall 
such  prizes,  when  they  come  to 


tions  responsables,  lesquelles  n'au- 
ront  aucun  interet  sur  le  dit  cor- 
saire,  et  dont  chacune,  ainsi  que 
e   capitaine,    s'engagera   particu- 
l-erement  et  solidairement  pour  la 
somme  de  sept  mille  dollars  ou 
••ente  six  mille  huit  cent  vingt 
francs;   et   si   les   dits   vaisseaux 
portent   plus    de   cent   cinquante 

Matelots  ou  Soldats.  pour  la  som- 
me  de  quatorze  mille  dollars  ou 
soixante  treize  mille  six  cent  quar- 

ante  francs,  qui  serviront  a  reparer 
'cs  torts  ou  dommages  que  les  dit« 

corsa.res,leursofficiers,  equipages 
ou  quelqu'un  d'eux  auraient  fait 
ou  commis  pendant  leur  croisiere 
de  contraire  aux  dispositions  de  la' 

Presente  convention,  ouauxloiset 
instructions   qui    devront   etre    la 

regie  de  leur  conduite:  en  outre 
les  dites  commissions  seront  revo- 

queesetannullees  dans  tous  les  cas 
O"  •'  y  aura  en  aggression. 


ARTICLE  XXIV 

Lorsque  les  vaisseaux  de  guerre 

des  deux  parties  contractantes.  ou 

ceux  que  leurs  citoyens  auraient 

armes  en  guerre,  seront  admis  a 

relacher.avec  leurs  prises,  dans  les 
ports  de  rune  des  deux  part.V 
'es  dits  vaisseaux  publics  ou  rar- 

t'culiers.dememe  que  leurs  nrses 
ne  seront  obliges  a  payer  'aucun 

droit,  soit  aux  officiersdu  lieu,  soit 
aux  juges  ou  a  tous  autres;  les 
dites  prises  entrant  dans  les  havres 


508  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


and  enter  the  ports  of  either  party, 
be  arrested  or  seized,  nor  shall  the 
officers  of  the  place  make  exami- 
nation concerning  the  lawfulness 
of    such    prizes;    but    they    may 
hoist  sail  at  any  time  and  depart, 
and  carry  their  prizes  to  the  places' 
expressed    in    their   commissions, 
which    the   commanders   of    such 
ships  of  war  shall  he  obliged  to 
shew.      It    is   always    understood 
that  the  stipulations  of  this  article 
shall  not  extend  beyond  the  privi- 
leges of  the  most  favored  nation. 


Article  XXV 

It  shall  not  be  lawful  for  any 
foreign  privatcfrs  who  iiave  com- 
missions from  any  I'rince  or  State 
in  enmity  with  either  nation,  to  fit 
their  ships  in  the  ports  of  either 
nation,  to  sell  their  prizes,  or  in 
any    manner   to    exchange    them: 
neither  shall  they  be  allowed  to 
purchase  provisions,  except  such 
as  shall  he  necessary  for  their  go- 
ing to  the  next  port  of  that  Prince 
or   State   from   which   they   have 
received  their  conmiissions. 

Article  XXVI 

It  is  further  agreed  that  both 
the  said  contracting  parties  shall 
not  only  refuse  to  receive  any 
pirates  into  any  of  their  ports, 
havens,  or  towns,  or  permit  any 
of  their  inhabitants  to  receive, 
protect,  harbor,  conceal,  or  assist 


ou  ports  de  lune  des  deux  parties 
ne  pourront  etre  arretees  ou  sai- 
sies,  et  les  officiers  des  lieux  ne 
pourront  prendre  connaissance  de 
la   validite   des   dites   prises,    les- 
quollcs  pourront  sortir  et  etre  con- 
du.es  en  toute  franchise  et  libcrtn 
aux  lieux  portes  par  les  commis- 
sions dont  les  capitaines  des  dits 
vaisseaux  seront  obliges  de   faire 
apparoir.    II  est  toujours  entendu 
que  les  stipulations  de  cet  article 
ne    s'etendront   pas    an    deld    des 
privileges  des  nations  les  ])Ius  fa- 


vorisees. 


Article  XX\' 


Tous  corsaircs  etrangcrs  ayant 
(les    comnnssions    d'un    Etat'  on 
Prince   m  guerre   avec   Tune   ou 
I'autre  nation,  ne  pourront  arimr 
leurs  vaisseaux  dans  les  ports  <lo 
Tune  ou  I'autre  nation,  non  phn 
quy    vendre   leurs    prises,    ni    it> 
echanger  en  aucune  maniere :  il  w 
leur  sera  permis  d'acheter  des  pro- 
visions que  la  quantite  necessain- 
pour  gagner  le  port  le  plus  voisin 
de  IT.tat  ou  Prince  duquel  ils  ont 
recu  leurs  commissions. 

Article  X.XVI 

II  est  de  plus  convenu  quaucime 
des  deux  parties  contractantes  no,, 
seulement  ne  recevra  point  de  pi- 
rates dans  ces  ports,  rades  ,.u 
villes.  et  ne  permettra  pas  quaii- 
tun  de  ses  habitans  les  recoive. 
protege,  accueille  ou  recele  en  au- 


them  ,n  any  manner,  but  will  brine 
to  condign  punishment  all  such  in- 
habitants as  shall  be  guilty  of  such 
acts  or  offenses. 

And  all   their  ships,    with    the 
goods  or  merchandises,  taken  by 

them  and  brought  into  the  port  of 
either  of  the  said  parties,  shall  be 
seized  as  far  as  they  can  be  dis- 
covered, and  shall  be  restored  to 
the  owners,  or  their  factors  or 
agents  duly  authorized  by  them  • 
(proper  evidence  being  first  given 

before  competent  judges  for  prov- 
•ng  the  property;)  even  in  case 
such  effects  should  have  passed 
>nto  other  hands  by  sale,  if  it  be 
proved  that  the  buyers  knew  or 
had  good  reason  to  believe  or  sus 

tatn  *"'  '^''  ^^'^  ^'"  P''""^''^^">- 


CONVENTION  OF  1800 


509 


Article  XXV'II 


cune  maniere.  mais  encore  livrera 
f  ""  J"^*«  ^I'^ti'nent  ceux  de  ses 

seaux  de";sXates.'ains^';i7e: 
effetsetmarchandisespareuxp 
e    -lenes  dans  les  ports  de  rune 
0"1  autre  nation,  serontsaisis  par 
-to,   i,3  ,,^^^^  decouverts'e 

ZZr    f     '""    P-P-taire 

"sespareux.aprestoutefoisou'ils 
auront    prouvedevant    les    'g 

competensle  droit  deproprietf 
Que  SI  les  dits  effets  avaient 
passe  pavente.  en  dautres  mains. 
I'  ''""  'r^'  acqueleurs  fussent  o„ 
P-sent  etre  instruits  ou  soupjn 
na'ent  que  les  dits  effets  ava  ent 
e^e  enieves  par  des  pi.ates.  i,s  "! 
™"'  egalement  restitues. 


^^^'^her  party  will  intermeddle 
'"  '^^  ^'^''"'^  ol  the  other  on  its 
coasts,   nor  disturb  the   other  in 
the  exercise  of  the  rights  which  it 
nou-  holds  or  may  acquire  on  the 
coast    of    Newfoundland,    in     he 
^f  of    St.    Uwrence.   or   else! 
-•^-e    on    the    American    coa  ^ 
northward  of  the  United  State 
ut  the  whale  and  sea.  fisherS 

shall  be  free  to  both  in  every  quar- 
ter  of  the  world. 

the  ^1  "'"  '"  ^"^   ^---  and 
the  ratifications  exchanged  in  the 


Articli-;  XXVir 

Aucune   des   deux    nations   ne 

de  i/'^'^P^'-  --^  Pecherie 
de    autre  sur  ses  cotes,  ni  la  trou- 

qu-  lie  a"'^  """"  ^«  ^^^^s 
quelle  a  mamtenant  ou  pourrait 
acquenr  sur  les  cotes  de  Tene 
"^"ve.  dans  le  golfe  de  St    lZ 

c^Terd-r-""^''''^"--'"^" 

Ft     '  t"''^^'<J-    au    nord    des 
f--tat.-Lms;  ma.s  la  peche  de  la 
f«'e.ne  et  du  veau  marin  sera  Hb  ' 
P«-  'es  deux  nations  dans  !ou  e 
'-^  parties  du  monde.    Cette  con 
vention    sera    ratifiee   de   part   "t 
dau.re  en  bonne  et  due  fo'rmee 


I 


510  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


space  of  six  months,  or  sooner  if 
possible. 

In  faith  whereof  the  respective 
Plenipotentiaries  have  signed  the 
above  articles  both  in  the  French 
and  English  languages,  and  they 
have  thereto  affixed  their  seals: 
declaring,  nevertheless,  that  the 
signing  in  the  two  languages  shall 
not  be  brought  into  precedent,  nor 
in  any  way  operate  to  the  preju- 
dice of  either  party. 

Done  at  Paris  the  eighth  day  of 
Vendemiaire  of  the  ninth  year  of 
the  French  Republic,  the  thirtieth 
day  of  September,  anno  Domini 
eighteen  hundred. 

J.Bonaparte.        [l.  s.] 
C.  P.  Flf.urieu.     [l.  s.] 

ROEDERER.  [L.  S.l 

O.  Ellsworth,      [l.  s] 
W.R.Davie.  [l.  s] 

\V.  V.  Murray,      [l.  s.] 


les  ratifications  seront  echange 
dans  I'espace  de  six  mois,  ou  pi 
tot,  s'il  est  possible. 

En  foi  de  quoi  les  plenipotei 
tiaires  respectifs  ont  signe  les  art 
cles  ci-dessus,  tant  en  langue  Frai 
<:aise,  qu'en  langue  Anglaise.  et  i 
y  ont  appose  leurs  sceau,  declarat 
neanmoins  que  la  signature  e 
deux  langues  ne  sera  point  cite 
comme  example,  et  ne  prejudicier 
a  aucune  des  deux  parties. 

Fait  a  Paris,  le  huitieme  Jour  d( 
Vendemiaire  de  I'an  neuf  de  k 
Republique  Frangaise  et  le  tren 
tieme  Jour  de  Septembre  mil  hull 
cent. 

(Signi.)     J.  Bonaparte. 
C.  P.  Fleurieu. 

RoEDERER. 

O.  Ellsworth. 
W.  R.  Davik. 

W.  V.  MURK.^Y. 


